High Court of Ireland Decisions

[2025] IEHC 135

THE HIGH COURT

JUDICIAL REVIEW

RECORD NO. 2024/4JR

BETWEEN 

MA

APPLICANT

AND

 

THE MINISTER FOR JUSTICE

RESPONDENT

JUDGMENT of Mr. Justice Heslin delivered on the 6^th day of March 2025

Introduction

1.            As made clear at para. d. of the applicant's statement of grounds dated 2 January 2024, the primary relief sought in this application is as follows:-

"1.        Certiorari by way of an application for judicial review to quash the decision of the respondent dated the 4^th December 2023 to refuse the applicant's application for residency under the Scheme to Regularise Long-Term Undocumented Migrants in Ireland ("the Scheme")."

 

2.            At the outset it was made clear that, despite being pleaded in the statement of grounds, the applicant does not rely on the doctrine of legitimate expectation. In essence, the applicant contends that the respondent's conclusion that he was a person to whom permission to reside had been granted (thereby excluding him from illegibility under the Scheme) was irrational and/or unreasonable and/or based upon a material error of fact and/or arrived at in breach of fair procedures and constitutional justice.

 

3.            It is common case that the applicant's claim is now moot in circumstances where he has received a permission to remain in the State in a separate statutory process to the Scheme.  However, this case was selected as a 'test' case and will determine some 12 cases in a cohort of similar claims. Therefore, both sides urged this Court to deliver a judgment and I am satisfied that there is utility in doing so (Odum v Minister for Justice (no.1) [2023] IESC 3).

 

The Scheme   

4.            The Department of Justice has published a policy paper on the Scheme, the introduction to which states inter alia: -

"1.2      The European Migrant Network defines the undocumented, also known as irregular migrants, as non-EEA nationals who "owing to irregular entry, breach of a condition of entry or the expiry of their legal basis for entering and residing, lack legal status in a transit or host country".  The undocumented consist of both adults and children.

1.3       The creation of legal pathways for the undocumented is also known as regularisation, or granting legal status to people who lack it. The focus of the Programme for Government commitment is on people who have a significant period of residence in the State without a residence permission and, therefore, face greater challenges in integrating into society and maintaining labour market mobility."  (emphasis added).

People and particular challenges

5.            I pause to note that the Scheme is not focused on the question of whether a residence permission is technically invalid or valid in the legal sense (and, in the manner presently examined, the crux of the applicant's argument is that all his residence permissions were retrospectively invalidated). Rather, the Scheme is focused on people, and the increased challenges they face due to being undocumented i.e. "greater challenges in integrating into society and maintaining labour market mobility" (and in the manner presently explained, there is no evidence of the applicant facing such challenges).

 

6.            The foregoing is emphasised in the "Objectives And Scope Of The Scheme" which begin as follows: -

"3.1      This time-limited Scheme has been developed to provide residence permission to persons who are living in Ireland, and have been doing so for a long period of time without a valid residence permission in the State, irrespective of how they entered the State initially, and are therefore considered to be "long-term undocumented". The Scheme is aimed at alleviating the particular challenges faced by those who have been "undocumented" for a long period and who face challenges in integrating into society and maintaining labour market mobility..."

 

 

 

Criteria

7.            Paragraph 3.2 of the Scheme makes clear that it is not open to individuals who have been undocumented for a short period, even if they have been resident in the State for a long period, whereas para. 3.3 makes clear that international protection applicants hold temporary residence certificates and are not, therefore, undocumented and do not come within the Scheme.

 

8.            Paragraph 4.9 of the Scheme goes onto clarify, for the avoidance of doubt, that certain categories of person do not come within the Scheme, namely: -

"Persons who have a current valid permission to reside in Ireland (including permission granted for the purposes of pursuing an application for International Protection, I.E.A. temporary residence certificate (TRC)...

Persons who have fallen out of permission but who are "undocumented" for less than the relevant minimum period set out below." (emphasis added).

 

9.            In the foregoing manner, the Scheme excludes certain persons who have been granted temporary permission to reside in Ireland in order to pursue a particular process i.e. apply for International Protection ("I.P"). In the manner presently discussed, whilst the applicant did not seek I.P., he was granted temporary permission to reside whilst pursuing a review of an adverse decision.

 

Minimum period of undocumented residency

10.         Paragraph 4.1.0 of the Scheme specifies the requirement for a minimum period of undocumented residency, namely: -

"I.  The principal applicant must have resided in the State without a valid residence permission continuously for a minimum of four years immediately prior to the opening date for this Scheme, i.e. 31 January 2022 and to have continued to do so at date of application..." (emphasis in original).

Jan 2018 - Jan 2022

11.         Thus, the relevant period for the purpose of this case is the 4 years from 31 January 2018 to 31 January 2022.  At the 'heart' of the applicant's case is that, during the entirety of this period, he had no valid permission to remain in the State. Having referred to the backdrop, it is useful to look in some detail at relevant facts which emerge from an examination of the evidence. For ease of reference, I propose to set these out in a chronology and to refer, as appropriate, to relevant legislative provisions.

 

Relevant chronology

12.         The applicant is an Egyptian national, born in 1984 . On or about 28 March 2008, the applicant arrived in the State on foot of C visa (visitor permission). Following the expiry of same, the applicant overstayed without permission. In February 2013, the applicant married a Lithuanian, and therefore EU- national ("the marriage"). This lady, born in 1969, was stated to have arrived in Ireland 5 months earlier, in October 2012. On the 21 May 2013, the applicant applied to the Minister for a residence card as the spouse of an EU national, in exercise of European Union Treaty Rights ("EUTR") in the State.  

 

2 July 2013 - first temporary EUTR permission

13.         On 2 July 2013, the applicant was granted temporary permission while his application was pending (the "first temporary EUTR permission").  

 

19 November 2013 - first EUTR permission

14.         On 19 November 2013, the applicant was granted a residence card based on the marriage as the spouse of an EU national, under the European Communities (Free Movement of Persons) (No.2) Regulations 2006 (S.I. 656/2006). This permission was valid for 5 years, to 18 November 2018 (the "first EUTR permission" or the "first residence card").

 

18 October 2018 application

15.         On the 18 October 2018, the applicant sought further permission based on the marriage by making an application for a second residence card, under the European Communities (Free Movement of Persons) (No.2) Regulations 2015 (S.I. 584/2015) ("the 2015 Regulations"). To this end, he submitted an 'EU1 Form' (in fact, used for applying for a residence card for the first time).  By letter dated 18 October 2018, the applicant's solicitors stated that the applicant and his wife were estranged and that she was unwilling to assist the applicant with any of the required documentation. 

 

The 2015 Regulations

16.         Of particular relevance is Regulation 7(1) of the 2015 Regulations which concerns "residence card for family member who is not a national of a Member State" and gives the right to apply to the Minister for a residence card based on EUTR. 

 

17.         Regulation 7(2) defines the "relevant date" for the purpose of the application, whereas Regulation 7(3) specifies the particulars which must be included in an application (set out in Schedule 2 of the 2015 Regulations). Regulation 7(4) requires the Minister to issue a notice acknowledging receipt of an application made under 7(1).  

 

18.         Where the Minister "is satisfied that it is appropriate to do so" a residence card will issue (containing particulars set out in Schedule 3, per Regulation 7(5)(a)). Alternatively, the applicant will be notified that the application has been refused and grounds for refusal will be given (per 7(5)(b)).

Regulation 7(6)

19.         At this juncture, it is important to note that Regulation 7(6) of the 2015 Regulations states:-

"(6)      An applicant under paragraph (1) may remain in the State pending a decision on the application" (emphasis added).

 

With reference to the foregoing, the respondent submits that the applicant enjoyed a right to remain in the State, temporarily, pending a decision on his 18 October 2018 application. This was not disputed on behalf of the applicant.

12 December 2018 - second temporary EUTR permission

20.         Consistent with the applicant's entitlement to remain in the State pending a decision on his EUTR application, the respondent's letter to the applicant, dated 12 December 2018, stated inter alia: -

"I am directed by the Minister for Justice and equality to refer to your application for a residence card made under the European Communities (Free Movement of Persons) (No.2) Regulations 2015 (S.I. 584/2015) (the "Regulations"), which was accepted for consideration by this office on 22/10/2018.

 

While your application is pending you may obtain a temporary permission to reside in the State. To obtain this permission, you, MA, most report to the Burgh quay registration office...

 

...On presentation of the following documents, your local immigration office may provide you with a Stamp 4 endorsement in your passport that is valid for the period of your application, expiring on 21/04/2019...

 

...This stamp will enable you to enter or remain in employment for this period. Please note that receipt of a Stamp 4 for this period is not an acknowledgment of having an entitlement to residence under EU Treaty Rights. This will be determined in due course when your application will be either approved or refused.

 

As the holder of this particular permission, if you are a visa-required national, you will be required to obtain a re-entry visa should you wish to leave the State..." (emphasis added).

In this manner, the Minister's 12 December 2018 letter made clear that the "temporary permission" related to the application under the 2015 Regulations for permission based on marriage (as made on 18 October 2018, and received on 22 October 2018).

 

5 April 2019 - second EUTR permission

21.         By letter dated 5 April 2019, the applicant was informed of the success of his application for a residence card under the 2015 Regulations and Directive 2004/38/EC (the "second EUTR permission" or "second residence card"). The said letter stated inter alia:

"... I am to inform you that the Minister has decided to approve your application for a Residence Card under Regulation 7 of the Regulations on the basis that you are qualifying family member of a Union citizen who is residing in the State in exercise of their rights under the directive.

 

To obtain the Residence Card of a family member of a Union citizen (Stamp 4 EU Fam), you, MA, accompanied by the EU citizen, JE, most report to the Burgh quay registration office...

 

... You should bring this letter with you when you attend to register. The EU citizen must also produce a valid passport or valid national identity card. Your passport will be endorsed with the appropriate permission to remain which will be valid for a five- year period...

 

As the holder of this particular residence card you will not be required to obtain an Irish re-entry visa. You must, if required by an Irish immigration officer at any port of entry, show this card as proof that you are a person who is exempt from Irish re-entry visa requirements.

 

In view of this approval, please note that if a Deportation Order or Removal Order has been made in relation to you, it will be revoked. If a Transfer Order has been made in respect of you it will not come into effect. If you have received a notice of a proposal to make a Deportation Order or Removal Order in relation to you, that notice is no longer applicable..." (emphasis added).

 

Investigation

22.         Thereafter, the Minister had cause to initiate an investigation into the validity and genuineness of the EUTR permission held by the applicant based on marriage. At this juncture it is important to note that Article 35 of the Directive concerns "Abuse of rights" and, as well as specifying that measures must be proportionate and subject to procedural safeguards, states: "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 marriage of convenience..." Regulation 2(1) of the 2015 Regulations makes clear that "'spouse' does not include a party to a marriage of convenience". Regulations 27 and 28 are of particular relevance and, in the manner presently examined, were exercised by the Minister. For the avoidance of doubt, it is common case that the Minister's powers in ss. 27 and 28 of the 2015 Regulations reflect the provisions of Article 35 of the Directive.

 

Regulations 27

23.         Regulation 27 provides inter alia: -

"Cessation of Entitlements

27.(1)   The Minister may revoke, refuse to make or refuse to grant, as the case may be, 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 a right, entitlement or status of being treated as a permitted family member 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 -

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

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." (emphasis added).

The use of the word "may" in Regulation 27(1) makes clear that the Minister's power is a discretionary one. That being so, there is no automatic consequence for a finding by the Minister of fraud or abuse of rights, including a marriage of convenience. 

 

Regulation 28

24.         Regulation 28 states, inter alia:-

"Marriages of Convenience

28.(1)   The Minister, in making his or her determination of any matter relevant to these Regulations, may disregard a particular marriage as a factor bearing on that determination where the Minister deems or determines that marriage to be a marriage of convenience.

...

(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 any entitlement under -

the Council Directive or these Regulations..."

19 February 2020 - proposal to revoke

25.         By letter dated 19 February 2020 (the "proposal to revoke") the EUTR section wrote to the applicant stating inter alia:

"Records held in this office indicates that you were granted permission to remain for a period of 5 years on 19/11/2013 and you were granted a further 5 years on 5/05/2019 on the basis that you were the spouse of an EU citizen, JE, who was residing in the State and in exercise of her EU Treaty rights.

 

You first entered this state on 28/03/2008 on foot of a C visa to enable you to attend an exhibition in the RDS and return to Egypt no later than 09/04/2008. It is noted you did not leave and you remained in the state illegally. Your EU1 application informs that your spouse entered the state on 06/10/ 2012. You were married to an EU citizen in this state on 21/02/2013, namely Ms. JE, following which you submitted an application for EU Treaty rights on 21/05/2013 on the basis that your wife was residing in this State and exercising her rights via employment. Following consideration of your application, you were granted Stamp 4 EU fam valid until 18/11/2018. On 22/10/2018 you submitted an EU1 application again based on your EU spouse residing and exercising rights in the State. In a covering letter submitted with this application, your legal representative states that you and your spouse are living separately and she is not willing to assist you with your application. This application was approved and you were granted permission valid up to 04/04/2024.

 

Given that a notification of intention to marry must be submitted 3 months prior to your proposed marriage date, this would mean that you submitted your notification no later than 21/11/2012 which is just approximately 3 weeks after Ms JE obtained her PPSN.  Having considered that you were illegally present in this state from 09/04/2008 to 02/07/2013 this would raise concerns regarding your relationship, given the short time between her alleged entry to the State, obtaining a PPSN, getting married and submitting a residence application. The Minister has concerns that you contrived to enter into a relationship with an EU national in order to obtain a permission to remain in this State.

 

Information available to the Minister reveals that in April 2019 you presented to Immigration Officers at Dublin airport. You stated that you and Ms JE were still together and living together at [address in Dublin]. You claimed that your spouse was working in [town in Midlands] and stayed in [town in Midlands] during the weeks and stays with you at the weekend in Dublin. The Immigration Officer asked when the last time you spoke to your wife and you replied "the other day". The officer then asked to see the call log or messages from that day, you then admitted that you haven't spoken to her in a while, approximately 4 months, however you claimed that you were still together. The officer asked how does your spouse reside with you at weekends if you haven't spoken to her in 4 months, you then stated that you separated in August 2018. The officer then asked you for a contact number for Ms JE, however you refused to provide one. After further questioning you admitted that Ms JE has been living in [town in Midlands] for 3 or 4 years and stated that you have never lived in [town in Midlands] with her and she never lived in [address in Dublin].

 

Information available to the Minister from An Garda Siochana reveals that Ms JE is recorded as being married to you from 21/02/2013 to 27/08/2014 and is recorded as cohabiting with a third party male from 24/01/2014 to 21/04/2016. It is noted that she is recorded as residing with a third party male just 2 months after your application was approved. Further information available from An Garda Siochana reveals that Ms JE has only ever been recorded as residing in [town in Midlands]. It is noted that you have provided numerous documentation to evidence Ms. JE's residence in the State and her address is listed as Dublin. Information available suggests that Ms JE was residing with a third party male at the same time as you registered with GNIB as residing with Ms JE.

 

Based on the above information, the Minister is 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. The Minister is also of the opinion that the documentation you provided to evidence the exercise of rights by your spouse in the State are (sic) also 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 (sic) the Minister will proceed to revoke your permission to remain in accordance with the provisions of Regulation 27 (1) 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 the EU citizen, 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 been found to be one of convenience in accordance with regulation 28(2) of the Regulations, in accordance with regulation 28 (1) of 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. the permission held whilst your applications were pending from 02/07/2013 to 20/11/2013 and 12/12/2018 to 21/04/2019 and the substantive permission held from 19/11/2013 to 18/11/2018 and 05/04/2019 to 04/04/2024 will be deemed to have never been valid and the residence card held on that basis will be revoked in accordance with Regulation 27 (1) of the Regulations

 

You are now required to provide representations to the Minister within 21 days of the date of this letter, stating why your permission to remain should not be revoked, to dismiss concerns that your marriage is a marriage of convenience in accordance with the provisions of Regulation 28(2)..." (emphasis in original).

4 EUTR permissions

26.         It is clear from the foregoing that the Minister considered that all of the following were permissions "held on the basis of this marriage": - (i) the first temporary EUTR permission; (ii) the first EUTR permission; (iii) the second temporary EUTR permission; and (iv) the second EUTR permission (collectively "the EUTR permissions" or "the 4 EUTR permissions"). The applicant does not dispute the foregoing.

 

Outcome

27.         Furthermore, the Minister made explicit that the outcome would determine the validity of any previous permissions held on the basis of the applicant's marriage. The Minister described these as the permissions "held whilst...applications were pending" (of which there were 2) and the "substantive" permissions (of which there were 2), i.e. the 4 EUTR permissions.

 

 

 

Fair procedures

28.         It is common case that the proposal to revoke, which specifically invited submissions as to why the applicant's residence permission should not be revoked, complied with fair procedures and accorded with the Minister's powers under the 2015 Regulations .  It is also important to note that no issue arises in this case concerning how the Minister exercised her powers under the 2015 Regulations, in particular, Regulations 27 and 28. 

25 August 2020 - decision to revoke

29.         By letter dated 25 August 2020 (the "decision to revoke") the Minister's EUTR section wrote to the applicant and, having set out the information of concern, stated inter alia:-

"The Minister contacted you outlining the above concerns to you and afford you an opportunity to respond and clarify these matters within 21 days.  No submissions or correspondence have been received.

 

Based on the above information, the Minister is satisfied that the documentation you provided in support of your application to evidence the residence of you and your family member in the State is false and misleading as to a material fact...

 

...Therefore the Minister has decided to revoke your permission to remain in accordance with the provisions of Regulation 27 of the Regulations and Article 35 of the Directive

 

In addition to the above, based on an assessment of your application to date, the Minister is satisfied that your marriage is one of convenience contracted for the sole purpose of obtaining a derived right of free movement and residence under EU law as a spouse who would not otherwise have such a right.  To that end, in accordance with Regulation 28 of the Regulations, the Minister has disregarded this marriage for the purpose of the determination of this matter. Therefore, the Residence Card permission (Stamp 4 EU Fam) held by you from 19/11/2013 and 05/04/2019 on the basis of this marriage was never valid and is now revoked.

As it has been determined that the permission to remain (Stamp 4 EU Fam) granted to you on 19/11/2013 and 05/04/2019 was obtained through your engagement in a marriage of convenience, that immigration permission is deemed never to have been valid. Equally, any temporary Stamp 4 permission associated with your application for permission to remain is now deemed never to have been valid ..." (emphasis in original).

 

All EUTR permissions revoked

30.         It will be recalled that the Minister's proposal to revoke gave notice that an adverse decision would result in any permissions held on the basis of marriage being invalidated. Consistent with this, the Minister revoked not only the first and second EUTR permissions but expressly stated "... any temporary Stamp 4 permission associated with your application for permission to remain is now deemed never to have been valid" (emphasis added). The present tense was used and plainly covered all EUTR permissions granted up to that point.

 

Based on marriage

31.         The Minister's reference to the "temporary" permissions was obviously to the first and second of the temporary EUTR permissions and reflected the fact that all EUTR permissions had been granted on the basis of the marriage in question. It is a statement of the obvious to say that each temporary permission allowed the applicant to remain in the State pending determination of his application for residence based on the marriage. 

 

Marriage of convenience

32.         The decision to revoke represents a material change in the status quo. The marriage was not the subject of investigation when any of the 4 EUTR permissions were granted. However, as of 25 August 2020, the marriage (upon which the 4 EUTR permissions had been sought and granted) was described by the Minister as "one of convenience contracted for the sole purpose of obtaining a derived right of free movement and residence under EU law as a spouse who would not otherwise have such a right".   

 

7 September 2020 - Review requested

33.         On 7 September 2020, the applicant sought a review of the Minister's decision to revoke, consistent with his entitlement to do so (under Regulation 25, which is entitled "Review of decisions"). It should be noted, however that, unlike the right to remain pending the outcome of a Regulation 7(1) application (explicitly granted by regulation 7(6)), Regulation 25 confers no right to remain, pending the outcome of a review. With reference to the foregoing, paragraph 33 of the applicant's written legal submissions state:

"Notably, at first instance the 2015 Regulations expressly provide that '[a] family member who is not a national of a Member State' who makes an application for a residence card 'may remain in the State pending a decision on the application': Regulation 7(6). No corresponding express right is contained in Regulation 25, which is silent as to an applicant's right to remain pending determination of their review." (emphasis added).

The foregoing suggests that, whilst there is legislative basis for the first and second temporary EUTR permissions (i.e. in Regulation 7(6)) temporary permission to remain pending the outcome of a review was a matter for the Minister's discretion. I will return to the topic presently but for now it is appropriate to continue to examine the facts in chronology.

 

9 September 2020 - first review permission

34.         By letter dated 9 September 2020, the Minister wrote to the applicant stating inter alia:-

"Enclosed is a letter allowing you to obtain a temporary permission to remain in the State pending the outcome of your review. This permission is for the duration of your review only, and it should not be considered to be an acknowledgement that you have a right of residence under EU Treaty rights. This will be decided in due course when the review officer makes a decision on your case." (emphasis added).

 

The enclosed letter (also dated 9 September 2020) stated, inter alia:-

"While your review is pending, you may obtain a temporary permission to reside in the state.  To obtain this permission, you, MA, must report to the burgh key registration office..."

 

"...Please note that receipt of a Stamp 4 for this period is not an acknowledgment of having an entitlement to residence under EU Treaty Rights. This will be determined in due course when your application will be either approved or refused."  (emphasis added).

In the foregoing manner, the Minister's correspondence of 9 September 2020 informed the applicant of the following: -

·         He was being given a temporary permission to remain in the State;

·         The reason was pending the determination or outcome of his review;

·         The period of this temporary permission was for the duration of the review only;

·         This temporary permission was not acknowledgment that the applicant had any EUTR rights; and

·         The EUTR rights issue was separate and would be decided in due course when the review was decided.

Limited purpose and duration

35.         In short, the Minister's letter makes clear that temporary permission was being given for a limited and specified purpose and duration, separate to the EUTR issue, namely, pending the outcome of the applicant's review. 

 

Not granted on the basis of marriage

36.         This first review permission was not expressed to be a permission granted on the basis of the applicant's marriage. This is not at all surprising. In the manner touched on earlier, the facts were materially different to those which pertained when the applicant sought EUTR permissions based on marriage.  As of 9 September 2020, the Minister had reached and communicated a decision that the marriage was one of convenience (having previously furnished detailed reasons for concerns around the marriage and called for submissions as to why any permissions granted on the basis of marriage should not be revoked). Consistent with the first review permission not being based on marriage, the applicant was not required to attend with the EU national for the purpose of registering same. 

 

Not linked to the outcome of the review

37.         Unlike the Minister's 19 February proposal to revoke all permissions held on the basis of the applicant's marriage, there is nothing whatsoever in the Minister's 9 September 2020 letters which ties the temporary permission to the outcome of the review. Again, that is hardly surprising given the fact that first review permission was granted for the specific purpose of the review, limited to the duration of same, and expressed to be separate to the EUTR issue.   

 

 

 

26 February 2021

38.         At para. of the 11 of the applicant's grounding affidavit sworn on 22 December 2023 he avers inter alia:

"By letter dated the 9^th September 2020, the respondent issued me with temporary permission to remain pending the determination of my review application valid until the 26^th February 2021." (emphasis added).

Thus, it is a matter of fact that the applicant was issued with a temporary residence card, valid until the 26 February 2021, while the applicant's review was pending. At the risk of stating the obvious, the Minister did not inform the applicant: Although I am giving you temporary permission to remain pending the outcome of and for the duration of your review only, I may later decide that you never had this this permission. There is nothing of the sort to be found in the first review permission. Were this Court either to 'find' such an intention on the part of the Minister or hold that this first review permission was void ab initio (as the applicant contends) it gives rise to a clear illogicality, as follows. Assuming that the review produced a decision by 26 February 2021, the applicant would have, in fact, relied upon this temporary permission, both as to the specific purpose and duration of same (i.e. the outcome of the review). That being so, how could he never have relied on same, bearing in mind that the permission was not linked in any way to the outcome of the review?  No such illogicality arises from the terms of the Minister's decisions read at face value.

 

Benefit

39.         It should also be noted that, during the currency of same, the applicant, as a matter of fact, had the benefit of first review permission which gave him the right to remain in this State for the purpose of the review he had called for. Recalling that the period covered by the first review permission was from 9 September 2020, to 26 February 2021, how can it be suggested that during this period the applicant was in the State unlawfully? The very opposite is the case, by virtue of the first review permission, bearing in mind that the Minister's 9 September letter stated, inter alia:-

"On presentation of the following documents, your local immigration office may provide you with a Stamp 4 endorsement in your passport that is valid for the period of your review, expiring on 26/02/2021.

1.    This letter

2.    Your national passport.

This stamp will enable you to enter or remain in employment for this period ..."  (emphasis added).

Undocumented

40.         It is a statement of the obvious that an 'undocumented' person, in the sense explained in the Scheme, has no right to reside in the State and cannot lawfully participate in the labour market.  Focussing, for present purposes, only on the first review permission, this simply cannot be said of the applicant between 9 September 2020 and 26 February 2021. During the currency of the first review permission, the applicant could not have been forced to leave the State or prevented from engaging in employment. In other words, he was not, in fact, an 'undocumented' person between the dates covered by the first review permission.

 

16 March 2021 - applicant's request for further permission

41.         Consistent with the fact that the first review permission had expired on 26 February 2021, the applicant's solicitors wrote to the Minister, on 16 March 2021, stating inter alia:

"Please confirm that our client is entitled to reside in the State while a decision on this application is pending" (emphasis added).   

In the manner touched on earlier, it is common case that, by virtue of Regulation 7 (6) the applicant had the right to remain in this State, temporarily, pending the outcome of his 'first instance' application for EUTR residence based on the marriage. Focussing on the second temporary EUTR permission (granted by the Minister on 12 December 2018), is common case that this reflected the applicant's right under Regulation 7(6).

 

"Open ended"

42.         Earlier in this judgement I quoted paragraph 33 of the applicant's written submissions, where it is acknowledged that Regulation 25 (which deals with review of decisions) does not contain the equivalent right specified in Regulation 7(6). Despite this, and with reference to temporary review permissions, Counsel for the applicant made skilled oral submissions to the effect that Regulation 7(6) is sufficiently "open ended" that it "arguably could include" a right to remain in the State pending the outcome of a review, as opposed to a 'first instance' decision on an application for residence based on marriage. Whilst a determination of that narrow question is not necessary for the purpose of deciding this case, it does not seem to me that Regulation 7(6) permits such an interpretation. The following observations seem appropriate.

 

Application v. Review

43.         It will be recalled that Regulation 7(6) provides that "An applicant under paragraph (1) may remain in the State pending a decision on the application". Regulation 7 (1) concerns a family member who is not a national of a Member State, who may "apply" to the Minister for a residence card. In other words, the entitlement to remain, articulated in Regulation 7(6), would clearly appear to relate to a 'first instance' decision on an EUTR application, as opposed to the outcome of a review of decision to revoke.  

 

Regulation 7 v. 25

44.         I am fortified in this view by the fact that reviews are dealt with separately, in Regulation 25. Given that a choice was clearly made to confer (in Regulation 7) a right to remain pending the outcome of an application, it seems to me that the absence of an equivalent right (in Regulation 25) pending the outcome of the review of a decision to revoke must also be considered to be a choice. 

 

 

 

 

 

S.S. v. Governor of Midlands Prison

45.         The foregoing views do not appear in any way inconsistent with the analysis in SS v. Governor of Midlands Prison [2019] IESC 37; [2019] 3 IR 595 ('S.S'). In that case, the applicant applied unsuccessfully for refugee status following which an application under regulation 7(1) of the 2015 Regulations was issued. He was arrested for the purposes of deportation. Subsequently, the Minister refused the application for a residence card. An application was brought pursuant to article 40.4 of the Constitution challenging the lawfulness of his arrest and detention on the basis that, at the time of his arrest, he was entitled to remain in the State pursuant to Regulation 7(6), pending a decision on his application for a residence card. The applicant was unsuccessful in this Court and in the Court of Appeal. However, the Supreme Court (Charleton J) allowed his appeal, holding that his arrest was unlawful and he was not detained in accordance with law. At para 30 of the reported judgment, the learned judge stated:

"What is involved on this appeal is an issue of the interpretation of domestic legislation.  That issue can be resolved by posing the following question: did the 2015 Regulations grant the right to stay pending the resolution of an application? The answer is clearly that the 2015 Regulations, in the replication of rights, did what was required by the 2004 Directive, but also granted that right. The phrase "may remain in the state pending a decision on the application" does appear in the 2015 Regulations but is not replicated in the 2004 Directive."

 

Going further

46.         The application in the S.S. case was for a residence card based on EUTR (i.e. a 'first instance' application) not a review of a decision to revoke. As noted in S.S., Regulation 7(6) went further than the Directive (with respect to granting a right to remain pending the outcome of a decision on the application. It seems to be that to accept the submissions made on behalf of the applicant in relation to the scope of 7(6) would be to go further than the Regulations.

 

Article 31.4

47.         Furthermore, whilst Article 31 of the Directive specifies "Procedural safeguards", Counsel for the respondent points out that Article 31.4 begins: "Member States may exclude the individual concerned from their territory pending the redress procedure....".

 

48.         Despite the sophistication and skill with which they were made, it does not seem to me that the submission made on behalf of the applicant went quite as far as asserting that he enjoyed a right to a temporary permission to remain in the State pending the outcome of the review of the decision to revoke, as opposed to the submission that such a right may be found in Regulation 7(6). Therefore my comments in relation to the scope of Regulation 7(6) are obiter. Keeping this in mind, but also attempting to deal with the substance of the submission, it seems to me that this Court would be engaging, impermissibly and without jurisdiction, in the drafting of secondary legislation, were it to 'find' in the 2015 Regulations a right to remain pending the outcome of a review in circumstances where:

(i)            it is not expressed in Regulation 7 which deals with applications;

(ii)           it could have been but is not expressed in Regulation 25 which deals with reviews;

(iii)         it is not required by the Directive; and

(iv)         Article 31.4 of the Directive states: "Member States may exclude the individual concerned from their territory pending the redress procedure..." 

 

Right v Discretion

49.         Returning to the specifics of this case, it is a matter of fact that the applicant did not assert any right to remain pending receipt of the review decision. On the contrary, he treated this as within the Minister's discretion to grant or not. I say this in circumstances where the 16 March 2021 letter from the applicant's solicitors did not assert an entitlement to continue residing in the State. Rather, the letter made a request for confirmation that the applicant could continue to reside. 

 

Specific purpose

50.         It can also be said that this letter which sought continuation of permission to reside in the State, did so with reference to a specific and stated purpose, namely, while a decision was pending. This of course 'chimed' with the purpose and duration of the first review permission granted by the Minister. 

 

Nature

51.         In light of the above, whilst there were 4 temporary permissions granted, it seems to me that there was a material difference between the nature of the temporary permission granted prior to, as opposed to after, the decision to revoke.

 

52.         The first and second temporary EUTR permissions reflect a right to remain, pending the outcome of an application for EUTR permission, based on marriage. By contrast, the two subsequent temporary permissions would appear to have a materially different basis, i.e. they appear to constitute the exercise of the Minister's discretion to permit the applicant to remain, pending the outcome of the review.

Stated purpose

53.         It is also clear from the 16 March 2021 letter the applicant, through his solicitors, asked for a continuation of temporary entitlement to reside in the State for a specific and stated purpose and duration, namely, "while a decision on this application is pending". This, of course, chimed with the purpose and duration of the first review permission (given that a decision on the review then remained outstanding).  

 

26 / 27 August 2021

54.         By letter dated 26 August 2021, the applicant's solicitors wrote to the Minister seeking an interim permission for the applicant to attend his father's funeral. By letter dated 27 August 2021, the Minister informed the applicant's solicitors that their "... client's review is in the queue to be processed. The length of time it takes to process your client's application may vary depending on a number of factors, including the volume of applications on hand. A decision may issue to your client at any point once your client has submitted their request..."

 

27 August 2021 - second review permission

55.         By letter, also dated 27 August 2021, the Minister confirmed inter alia that: "While your review is pending, you may obtain a temporary permission to reside in the State... valid for the period of your review, expiring on 20/05/2022...This stamp will enable you to enter employment for this period. Please note receipt of a Stamp 4 for this period is not an acknowledgement of having an entitlement to residence under EU Treaty rights. This will be determined in due course when your review will be either approved or refused." ("the second review permission").

 

56.         The comments made earlier in relation to the first review permission apply equally to the second review permission, which was granted in similar form, save for the relevant date of expiry.   Again, this permission was specific as to the purpose and duration, namely, pending the outcome of the applicant's review. It can also be said that the second review permission was precisely what the applicant, through his solicitors, had asked for when stating: "Please confirm that our client is entitled to reside in the State while a decision on this application is pending."  

 

57.         When granting the second review permission, the Minister did not link the validity of same to the outcome of the review (unlike the position adopted in the Minister's proposal to revoke. Once more, this was not a permission based on marriage, but another 'stand-alone' temporary permission for a specific purpose and duration (i.e. while the applicant's review was pending and valid only for the period of the review). It was also a temporary permission with a specific expiry date (i.e. 20 May 2022).

 

58.         Again, the applicant relied on this temporary permission and gained the benefit of it at the time, just as he had done with the Sept. 2020 permission. Thus, it is a matter of fact that between 27 August 2021 and 20 May 2022 (as was the case between 9 September 2020 and 26 February 2021) the applicant was not in the State unlawfully. I take this view because it is simply a matter of fact that during the currency of the second review permission, he could not have been compelled to leave the State, nor was it unlawful for him to work in the State

 

'Stand-alone'

59.         In the manner examined above, I have come to the view on the evidence and having regard to the relevant provisions in the 2015 Regulations that, in exercise of her discretion, the Minister gave and the applicant availed of two 'stand-alone' temporary permissions to reside in this State, for the limited purpose of; and pending the outcome of; and for the duration of; the review of the decision to revoke; each of which review permissions also had a specified expiry date.

 

7 June 2022 - Review Decision

60.         By decision dated 7 June 2022 ("the Review decision"), the Minister upheld the earlier decision to revoke the applicant's residence card. The first page stated inter alia: "You were advised on 05/04/2019 that the Minister had decided to approve your application, and you were provided on that date with permission to remain in the State for a period of five years on a Stamp 4 EU Fam basis, until 04/04/2024" I pause to say that the foregoing refers to the second EUTR permission. The review decision continued by stating, inter alia:-

"This permission was revoked on 25/08/2020. This was because the Minister was of the opinion that the documentation that you had provided in support of your application was false and misleading as to a material fact, particularly with respect to your own and the EU citizen's residence in the State and with respect to the EU citizen's exercise of rights. This constituted a fraudulent act within the meaning of the Regulations and Directive, and the Minister decided to revoke your residence card in accordance with the provisions of Regulation 27(1) of the Regulations and Article 35 of the Directive.

 

Furthermore, the Minister was of the opinion that your marriage was one of convenience, contracted for the purpose of obtaining a derived right of free movement and residence under EU law as a spouse who would not otherwise have such a right. The Minister decided to revoke your permission to remain in accordance with the provisions of Regulation 28(1) of the Regulations. The permissions that you held from 19/11/2013 and from 05/04/2019 were deemed never to have been valid." (emphasis added).

 

61.         The foregoing refers to the first and second EUTR permissions (i.e. 5-year residence cards).  Having looked at the provisions of Regulation 27 earlier in this judgment, it is common case that the aforesaid decision was within the Ministers power to make. The review decision proceeded to set out in detail the information relied upon by the Minister, stating inter alia:

"...The accelerated nature of your relationship and decision to marry is of some concern - it appears that you met and married each other within a period of just six weeks. The Minister notes, moreover, that your immigration position in Ireland was precarious when you decided to marry, having remained illegally in the State since 2008. 

 

In this connection, it is considered that you have provided little cogent documentation or information in respect of your relationship with the Union citizen in this case. That is to say, there is insufficient evidence on file that you and the EU citizen had any relationship prior to your marriage and there is nothing to suggest that you made any financial commitments to each other, had any joint assets or liabilities, travelled or lived together for any significant length of time outside the State, 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.

 

These considerations, along with the aforementioned information provided to the Minister, strongly indicate that your marriage to Lithuanian citizen JE was one of convenience in accordance with Regulation 28 of the Regulations that was contracted in an attempt to obtain an immigration permission to which you would not otherwise be entitled. This marriage was never genuine, and the Minister is of the view that it should be disregarded for the purposes of immigration. As such, any permissions provided to you on the basis of this marriage were not valid permissions.

 

Having considered all of the information, documentation, and submissions on all of your files, the Minister is not persuaded that the decision of 25/08/2020 should be overturned.  You have failed to establish that the Deciding Officer erred in fact or law when revoking your residence card. The Minister finds that appropriate procedures were used and the correct interpretation of the Regulations and the Directive was applied. In making her determination, the Deciding Officer in this case considered all of the information and documentation available to her.

 

The Minister is satisfied that you submitted and sought to rely upon documentation and/or information that you knew to be false and/or 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.

 

Moreover, the Minister is satisfied that your marriage to Lithuanian citizen JE was one of convenience in accordance with Regulation 28 of the Regulations that was contracted in an attempt to obtain an immigration permission to which you would not otherwise be entitled.  This marriage was never genuine, and it will be disregarded for the purposes of immigration. As such, any immigration permissions that were provided to you on the basis of this marriage were not valid permissions.

 

The Minister finds, furthermore, that you have failed to adequately address the concerns that were raised in her letter of 25/08/2020.

 

Against this background, the Minister has decided to affirm the decision of 25/08/2022 to revoke your residence card. Furthermore, the permissions that you held from 29/11/2013 and from 05/04/2019 were not valid permissions, and they have been revoked." (emphasis added).

 

62.         The following observations seem appropriate. The Minister clearly informed the applicant that immigration permissions "provided to you on the basis of this marriage" were invalid. In the manner previously examined, I am satisfied that neither the first review permission (9 September 2020) nor the second review permission (27 August 2021) were provided to the applicant "on the basis of this marriage". Both review permissions were given after a finding that the applicant's marriage was one of convenience entered into for the sole purpose of obtaining residence cards.  Both were 'stand-alone' temporary permissions specific to the purpose and duration of the review, the Minister having made explicit that the EUTR issue was separate and distinct from these temporary permissions. Furthermore, for the reasons explained, the nature of the 2 temporary review permissions seems to be materially different to basis for the 4 EUTR permissions (i.e. discretionary, not legislative).

 

Revoked

63.         For the sake of clarity, it will be recalled that the 4 EUTR permission were as follows:

(i)            first temporary EUTR permission, granted 2 July 2013;

(ii)           first EUTR permission, granted 9 November 2013 (5 year residence card);

(iii)         second temporary EUTR permission, granted of 12 December 2018; and

(iv)         second EUTR permission, granted 5 April 2019 (5 year residence cared).

 

Whilst all the of the above were revoked, it is a matter of fact that the last 'in time' of the EUTR permissions which the Minister explicitly revoked in the review decision was the second EUTR permission, of 5 April 2019 (in the form of the second 5-year residence card). It is common case that this had permission had been granted on the basis of marriage. 

 

Not revoked

64.         However, the Minister did not revoke either the first or second of the review permissions in

the review decision. 

 

Is now deemed never to have been valid

65.         Given the fact that the Minister affirmed her 25 August 2020 decision to revoke, it is useful to recall that it stated inter alia: -

"As it has been determined that the permission to remain (Stamp 4 EU Fam) granted to you on 19/11/2013 and 05/04/2019 was obtained through your engagement in a marriage of convenience, that immigration permission is deemed never to have been valid. Equally, any temporary Stamp 4 permission associated with your application for permission to remain is now deemed never to have been valid." (emphasis added).

 

66.         The Minister made this finding on 25 August 2020 and affirmed it in the review decision of 7 June 2022. As touched on earlier, the Minister did not state or suggest, on 25 August 2020, that any future temporary permission associated with any review would or might be deemed never to have been valid, depending on the outcome of the review. In other words, both the decision to revoke and the review decision are entirely consistent. Both are directed to immigration permissions provided on the basis of the marriage. Neither concern any temporary permission specific to a decision on a review. 

 

Later / earlier

67.         As a matter of fact the decision to revoke did not concern either of the temporary review permissions, for the obvious reason that they came later in time. It seems fair to say that the temporary review permissions were not captured by the review, in the sense that the applicant called for a review on 7 September 2020 which is before either the first or second review permission was granted (on 9 September 2020, and 27 August 2021, respectively).

 

26 February 2021

68.         Bearing in mind that the review decision did not expressly revoke either of the review permissions, the evidence examined in this judgment supports a finding of fact that the first review permission (granted from 9 September 2020) came to an end by expiring on 26 February 2021. It was not revoked at any stage. Nor did the Minister ever declare that it was void ab initio. 

 

20 May 2022

69.         Similar comments apply in relation to the second review permission, granted from 27 August 2021. There is no evidence that the Minister ever revoked this permission or declared it to be void ab initio. Thus, the second review permission came to an end by expiring on 20 May 2022.

 

Expiry dates

70.         It is a statement of the obvious to say that both of these expiry dates preceded the review decision of 7 June 2022. Thus, had the Minister intended to deem them invalid, it was open to her to say so. However, she did not say so, be that on 7 June 2022 or at any other point. 

24 June 2022 - Scheme Application

71.         Within two weeks of receiving the Minister's review decision, the applicant submitted an application under the Scheme. It is common case that the applicant did so on the basis that he never held any valid residence permission and, therefore, met the 4-year minimum period of undocumented residency (set out in para. 4.10 of the Scheme's policy).

 

19 April 2023 - First instance refusal

72.         By decision dated 19 April 2023 the said application was refused (the "first instance refusal"). The first instance refusal stated inter alia:-

"We have assessed your application in line with the regularisation of long-term undocumented migrant scheme criteria. In assessing your application we considered all information available, documentary evidence provided and your immigration history in the State. Your application has been refused for the following reason(s):-You do not satisfy the required period of undocumented residence in the State. On examination of your immigration history, it was noted that you held a temporary Stamp 4 residence permission from 9 September 2020 to 26 February 2021. You held a further Stamp 4 residence permission from 27 August 2021 which did not expire until 20 May 2022. This permission was not revoked prior to the Scheme's opening date of 31 January 2022. You were therefore not undocumented for a continuous four-year period immediately prior to the Scheme's opening date of 31 January 2022.

Important information

You have the option to request a review of the decision on your application..." (emphasis in original).

 

 

3 May 2023 appeal

73.         By letter dated 3 May 2023 the applicant, via his solicitors, appealed the first-instance refusal stating inter alia:-

"We disagree with the decision and submit that it errs in fact and in law and/or is irrational and unreasonable and/or was reached in breach of fair procedures.

 

By letter dated the 7^th June, 2022, Mr. MA's EU residence card was revoked by the Minister. The letter confirms, inter alia, that any previous permission our client held based on his marriage were invalid. Mr. MA therefore, contrary to what is found in your decision, did not hold permission between 2020 and 2022. The effect of the letter of the 7^th June, 2022 was to affirm the decision of the 25^th August, 2020, revoking our client's Residence Card granted on the 9^th November, 2013 and all previous permissions held based on the marriage...

 

...Our client clearly fulfils the required period of undocumented residence in the State..." (emphasis added).

The Decision - 4 December 2023

74.         On 4 December 2023 the Minister upheld the first instance refusal on the basis that the applicant did not satisfy the Scheme's requirement of 4 years undocumented residence. The decision comprised a three-page letter to the applicant which enclosed a three-page document entitled "Appeal Consideration" (collectively, "the Decision"). The first page of the letter stated inter alia:-

"Having considered the entirety of the case, the refusal decision of 19 April 2023 is upheld for the following reason(s):

 

On examination of your immigration history, it was noted that you held a temporary Stamp 4 residence permission from 9 September 2020 to 26 February 2021. You held a further Stamp 4 residence permission from 27 August 2021 which did not expire until 20 May 2022. This permission was not revoked prior to the Scheme's opening date of 31 January 2022. You were therefore not undocumented for a continuous four-year period immediately prior to the Scheme's opening date of 31 January 2022. 

 

In arriving at this decision, I found that the appropriate procedures were applied and the initial decision maker applied the correct interpretation of the illegibility criteria as detailed in the Policy Paper and in other associated information on the Scheme, as available on the immigration service delivery website.

Your current status

Your application for permission under the Regularisation of Long-Term Undocumented Migrants Scheme is refused..." (emphasis in original).

 

 

 

Appeal Consideration

75.         The first page of the Appeal Consideration referred to the "Decision under Appeal"; "Documents Considered in Appeal"; and the "Grounds of Appeal". The second page went on to refer to "The Scheme" stating inter alia: -

"The eligibility criteria for the Regularisation of Long-Term Undocumented Migrants Scheme sets out that an applicant must be undocumented in the State for a period of four years, in the case of a single person. Clause 3.1 of the Policy Paper in relation to the Scheme, available on the Immigration Service Delivery website, sets out that the Scheme was developed to give residence permission to people living in Ireland for a long period of time "without a valid residence permission".

 

The period of time is specified in Clause 4.10 of the Policy Paper, which states that, to be eligible for the Scheme, principal applicants must have resided in the State without a valid residence permission continuously for a minimum of four years immediately prior to the Scheme's opening date, i.e. 31 January 2022, and to have continued to do so at the date of applying under the Scheme..."

 

The third and final page entitled "Appeal Decision" stated inter alia:-

"I have fully considered this ground of appeal and have verified that the Minister's records show that the Appellant held a valid temporary Stamp 4 residence permission in the State which was not to expire until 20 May 2022. This temporary Stamp 4 permission was not revoked prior to the Scheme's opening date of 31 January 2022.  You were therefore not undocumented for a continuous four-year period immediately prior to the Scheme's opening date of 31 January 2022.

 

By virtue of this temporary Stamp 4 residence permission, the Appellant does not meet the Scheme eligibility condition of having four years' undocumented residence in the State immediately prior to the launch date of the Scheme i.e. the period between 31 January 2018 and 31 January 2022.  For part of this time period, due to having a temporary Stamp 4 residence permission, he was a documented person. The Appellant's arguments in respect of his length of time in the State, his experiences are all noted and have been fully considered. Having considered the totality of the Appellant's case, I am satisfied that there are no circumstances inherent in the Appellant's case which would outweigh the Minister's interest in maintaining the integrity of the Scheme and its criteria.

 

 I am further satisfied that the original deciding officer fully considered the facts and circumstances of the Appellant's original Scheme application and applied the criteria of the Scheme correctly.

 

I affirm the original decision of 19 April 2023 and refuse the appellant's appeal." (emphasis in original).

 

 

Submissions by the applicant

76.         The applicant's case is incapsulated in the following submissions: "...by finding that all permissions granted on the basis of the marriage were not valid, the temporary permissions were thereby expressly revoked by the Minister" (para. 57 of the applicant's written legal submissions).  The reference to "temporary permissions" is, of course, to the first review permission (9 September 2020 to 26 February 2021) and the second review permission (27 August 2021 to 20 May 2022). A summary of the principal submissions made on behalf the applicant includes:

·         both of the temporary review permissions must have been based on the marriage, and were only granted because of the marriage;

·         because the applicant failed in his review, the temporary review permissions must be considered invalid;

·         it is consistent with EU jurisprudence that any rights grounded on an abuse (i.e. marriage of convenience) would be void ab initio;

·         the effect of the finding that the applicant's marriage was one of convenience is that he became a person residing in the State without valid permission;

·         the Minister's finding is absolutely clear, namely, the residence permissions granted to the applicant were held not to be valid as a consequence of the marriage of convenience;

·         all permissions were retrospectively invalidated;

·         the Minister's decision that immigration permissions based on the marriage of convenience were not valid must apply to the temporary review permissions and, therefore, the applicant comes within the Scheme as someone who did not have any valid permission;

·         the Minister is acting in an unreasonable and irrational way in the manner the Scheme is being applied;

·         the applicant is being wrongly excluded from the Scheme.

 

77.         I entirely accept that the 4 EUTR permissions were only granted on the basis that the applicant was married to an EU citizen and had either received permission based on the marriage, or was awaiting the outcome of an application for same based on the marriage. It is also clear that, having upheld the decision to revoke, the Minister declared that any permissions based on the marriage of convenience were invalid. In the manner examined, these were the 4 EUTR permissions. The foregoing is perfectly clear from the evidence. There also is a consistency on this issue between (i) the Minister's proposal to revoke (dated 19 February 2020); (ii) the decision to revoke (dated 25 August 2020); and (iii) the review decision (dated 7 June 2022). However, there was no express finding that the two temporary review permissions were invalid. The Minister did not expressly revoke either of them.

 

Because of

78.         Both temporary review permissions were granted (i) after the decision to revoke wherein the Minister found the marriage to be one of convenience; and (ii) after the applicant had called for a review of that decision. In the manner examined earlier, both of the temporary review permissions were 'purpose-specific' (i.e. for the purpose of and pending the determination of the review, only) and 'time-limited' (to a specific expiry date). As also examined earlier, the Minister never linked the outcome of the review (i.e. whether or not the applicant persuaded the Minister that the marriage was not one of convenience) to the validity of the temporary review permissions. Thus, they were at a further 'remove' from the marriage than any of the EUTR permissions. They did not relate to an application based on marriage but related to the outcome of a review, whatever that might be. Whereas it is submitted on behalf of the applicant that both review permissions must have been granted because of the marriage, I have come to a different view. They were not granted because of the marriage. They were granted because of the review.  

 

Self-executing

79.         It will be recalled that both review permissions had specific expiry dates (i.e. 26 February 2021, and 20 May 2022, respectively). The evidence supports a finding that those dates simply came and went without the Minister ever stating, before or after, that she was revoking either temporary review permissions. The termination of each of the temporary review permissions was, therefore, 'self-executing'. Each expired on the relevant expiry date specified by the Minister when, in exercise of her discretion, she granted each review permission.

 

Unnecessary

80.         Furthermore, given the fact that the temporary review permissions expired on 26 February 2021, and 20 May 2022, respectively, it was entirely unnecessary for the Minister to address either of them in her 7 June 2022 review decision unless, that is, the Minister wished to make a different decision as to the manner in which they came to an end. She made no such decision. 

 

Imply

81.         Underpinning the applicant's case would seem to be the proposition that this court should imply an intention (never expressed by the Minister) to revoke temporary review permissions (which she never, in fact, revoked) which, in fact expired. The foregoing is incapsulated in the applicant's submission to the effect that the Minister's "...review decision contains an obvious read-back to the position ab initio such that the residence card and any temporary Stamp 4 permission associated with the application to remain were now deemed never to have been valid" (para. 46 of the applicant's written submissions).

 

Different decision

82.         Having carefully considered the evidence, I feel obliged to reject the foregoing. The respondent could have expressly revoked the review permissions, but plainly did not do so. Were this court to interpret the Minister's review decision as meaning that either or both of the review permissions were void ab initio, it would be to alter in a material way the decision made by the Minister. In essence it would be for this Court, in excess of jurisdiction, to make a different decision to the one the Minister, in fact, made.

 

 

 

Not irrational or unreasonable  

83.         The conclusion in the decision that the applicant held valid temporary permissions during the relevant period, the last of which expired on 20 May 2022, was factually sustainable and based on material before the Minister. It was neither irrational nor unreasonable in the sense in which those terms are used in judicial review (see Keegan v Stardust Compensation Tribunal [1986] I.R. 642; O'Keeffe v An Bord Pleanála [1993] 1 I.R. 39 (at p. 72); Meadows v Minister for Justice [2010] 2 IR 701 (at 743 - 774); and Abbas v Minister for Justice [2021] IECA 16 (at 101)). Nor does the decision disclose any material error of fact or breach of fair procedures.

 

Authorities

84.         Among the authorities relied upon by the applicant is the decision of the CJEU in Cussen & Ors. v T.G. Brosnan (case C-251/16, ECLI: EU: C: 2017: 881C-251/16) where (at para. 32) the court stated:-

"It should also be added that, according to the Court's case law, refusal of a right or an advantage on account of abusive or fraudulent acts is simply the consequence of the finding that, in the event of fraud or abuse of rights, the objective conditions required in order to obtain the advantage sought are not, in fact, met, and accordingly such a refusal does not require a specific legal basis."

 

85.         With respect, this is not on 'all fours' with the facts of the present case, where this applicant was (i) given and benefited from two temporary permissions to remain in the State; (ii) for the specific purpose of his review; (iii) not linked to the outcome of that review; (iv) which permissions do not have any express legislative basis in the 2015 Regulations; (v) which permissions came to an end by the effluxion of time, consistent with the specific expiry date for each temporary review permission; and (vi) the fact that the Minister neither revoked these permission prior to their expiry dates; nor (vii) declared at any stage following the expiry of these review permissions, that either was invalid or void ab initio.   

 

Retrospectively

86.         The applicant points to the recent decision of R.S. v Minister for Justice [2024] IECA 151 wherein the Court of Appeal interpreted the power to revoke permission under Regulation 27 as "...clearly capable of being exercised retrospectively...".  This does not, however, address the fact that the Minister made no decision to revoke either of the review permissions and never declared either to be retrospectively invalid.    

 

Retroactive

87.         The applicant places considerable emphasis on the words "with retroactive effect" which appear in para. 48 of case C-557/17 Y.Z. & Others (fraud in family reunification) EU: C: 2019: 203 wherein the court stated:-

"...in accordance with Article 1 of Directive 2003/86, the purpose of that directive is to determine the conditions for the exercise of the right to family reunification by third-country nationals residing lawfully in the territory of the Member States. It follows that the right is confined to such nationals, which is confirmed by the definition of the concept of 'family reunification' in Article 2(d) of that directive. However, a third-country national who, like the father in the case in the main proceedings, has his residence permits withdrawn with retroactive effect, owing to the fact that they were acquired fraudulently, cannot be regarded as residing lawfully on the territory of a Member State.  It is therefore, a priori, justified that such a national cannot benefit from that right and that the residence permits granted to the members of his family on the basis of that directive maybe withdrawn." (emphasis added).

The foregoing principle simply does not apply to the particular facts in the present case. Leaving aside the reality that it concerns a different directive, one which Ireland has not 'opted into', the court was concerned with the consequences, for family members, of the withdrawal, with retroactive effect of a parent's residence permit. On the facts of the present case, the key question does not concern residence permits, but temporary permissions, granted in the wake of a finding that the marriage was one of convenience and limited to the purpose and duration of a review against that finding.

 

Obvious read-back to the position ab initio

88.         The applicant places significant reliance on a passage from the judgment of this Court in Islam (a minor) v Minister for Foreign Affairs [2019] IEHC 559 ("Islam (a minor)"): -

"...insofar as the Minister determined that the marriage is one of convenience, a decision that the father failed to challenge, that has an obvious read-back to the position ab initio, and it is clear that an individual can't assert rights based on a marriage of convenience any more than he or she can do so on the basis of any other fraud or abuse of law." (emphasis added).

 

Fraud

89.         The applicant also relies on this Court's decision in MKFS v The Minister for Justice & Equality [2018] IEHC 103 ("MFKS"), where it was stated (at para. 16) :-

"As regards the contention that the rights of the parties were disregarded, any ministerial or administrative decision-making process is not a safe haven for fraudulent applicants. Where it is determined that the applicants' relationship is based on fraud, no 'rights' can arise from such a relationship; and an absolutely necessary consequence is that no obligation arises under the Constitution, the ECHR or EU law to consider any such 'rights'..." (emphasis added).

With reliance on the foregoing, the applicant submits that the outcome of the review must have the effect of revoking, as invalid, both review permissions. In essence, the applicant relies on the maxim ex turpi causa non oritur actio (or, fraud unravels all). 

 

Fraud unravels all

90.         The applicant submits that the Minister's finding that his marriage was one of convenience is a finding that the relationship was based on fraud and, therefore, a necessary consequence is that all permissions granted to him (i.e. the EUTR permissions on foot of his marriage, and both temporary review permissions are invalid). However, the respondent draws my attention to the more recent (2 June 2022) decision of the Supreme Court in U.M. (a minor) v The Minister for Foreign Affairs and Trade & Ors. [2022] IESC 25; [2023] 1 I.L.R.M. 24 ("U.M.") which makes it clear that the matter is more nuanced. 

 

U.M.

91.         In the judgment delivered by Ms. Justice Dunne, the learned judge referred to MKFS and the observations made by Mr. Justice McKechnie when that case came before the Supreme Court.  At para. 102, Ms. Justice Dunne stated the following with reference to MKFS:-

"...the reliance placed on the decision of the High Court in that case cannot stand now in the light of the subsequent decision by this Court in relation to the matter, which makes it clear that a finding that a marriage is a marriage of convenience cannot be regarded as fraud, and thus the concept that no rights could arise from such a relationship is not a correct view of the law. It may be that what is described as a marriage of convenience can in some way be regarded as a "fraudulent" marriage, but it will subsist as between the parties with all the rights that flow from a marriage, unless and until the marriage has been annulled. Therefore, the statement relied on from the judgment in the High Court, to the effect that where it is determined that "the applicant's relationship is based on fraud, no rights can arise from such a relationship", is clearly not a correct statement of the position." (emphasis added).

 

92.         In short, the principle articulated by this Court in Islam (a minor) and MKFS, upon which the applicant relies in these proceedings, is no longer a correct statement of the law. In other words, whilst the Minister undoubtedly found the applicant's marriage to be one of convenience, it does not necessarily follow that this Court must consider the marriage to be a legal nullity in all respects. Guided by the approach taken in U.M., even if I am wrong in the view that the review permissions were not based on the marriage (as opposed to being for the purpose of and specific to the review) it is not axiomatic that the review permissions were void ab initio. 

 

Valid

93.         It does not seem unfair to suggest that the applicant's case is focused on the single word, "valid", which appears in the phrase "valid residence permission" in the Scheme's policy paper, as follows:-

"3.        Objective and Scope of the Scheme

3.1       This time-limited Scheme has been developed to provide residence permission to persons who are living in Ireland, and have been doing so for a long period without a valid residence permission in the State, irrespective of how they entered the State initially, and are therefore considered to be "long-term undocumented". The Scheme is aimed at alleviating the particular challenges faced by those who have been "undocumented" for a long period and who face challenges in integrating into society and maintaining labour market mobility." (emphasis added).

 

Para. 89 of the applicant's written legal submissions put matters as follows: -

"The applicant submits that the term 'a valid permission' must be read excluding a permission determined to be invalid since otherwise the specific use of the word 'valid' must be ignored."

However, and without intending any disrespect, the applicant's case does not engage at all with the purpose of the Scheme and the criteria for entry, beyond the sophisticated but Jesuitical argument which can be summarised as follows:

(i)            my marriage was found to be a fraud;

(ii)           therefore, it is invalid for all purposes;

(iii)         hence, all my residence permissions were invalid; and

(iv)         therefore, I necessarily qualify for the Scheme.  

Purpose and criteria

94.         The Scheme, however, is aimed at persons who because of their undocumented status faced particular challenges which this applicant simply did not face, as a matter of fact. The applicant's case simply does not address this reality. In essence, the applicant's case is that the finding of invalidity ab initio, in the EUTR context, binds the Minister in all other contexts, regardless of the facts and circumstances. In this regard, the averments made at para. 8 of the affidavit sworn on behalf of the respondent by Mr. Cathal McGinley comprise both relevant and uncontested evidence:-

"...the policy commitment in the Programme for Government from the outset was to be subject to specified criteria and open only to those meeting those specified criteria. It was not, nor was it ever capable of being understood as, a blanket amnesty for all persons present unlawfully in the State."

 

95.         It seems to me that the applicant's emphasis on the Minister's finding of invalidity in respect of EUTR residence permissions fails to engage with the reality that the Scheme is an entirely separate framework, aimed at the undocumented, open only to those meeting the relevant criteria. There is nothing in the Scheme's policy paper to suggest that admission to the Scheme shall be determined by the single narrow question of whether a residence permission was or was not valid in the narrow legal sense (with all other facts and circumstances to be ignored by the Minister).  

 

Formal revocation

96.         Whilst it is indisputably the case that, for many years, the applicant held residence permissions which were valid at the time, he argues that the finding that his marriage was one of convenience necessarily invalidates all his residence permissions for the purpose of the Scheme.  For the reasons set out in this decision, I cannot agree. As Dunne J. stated (at para. 49) in U.M.:-

"...having regard to the need for certainty in relation to these matters, again, on balance, how could revocation date from any period other than the date of formal revocation of the declaration of refugee status. After all, the Minister is given the power 'if he or she considers it appropriate to do so' to revoke the declaration. If, for whatever reason, no revocation has taken place, it is difficult to see how these specific categories could be said to have been revoked prior to a formal decision by the Minister to do so." (emphasis added).

 

97.         Focussing for the moment only on the two temporary review permissions, the Minister did not formally revoke either one. Thus, until the expiry date of each review permission, they remained in being and valid to all intents and purposes. In A.K.S. v Minister for Justice [2023] IEHC 1, Ms. Justice Phelan stated (at para. 118):-

"It is clear from the language of the Regulations (and indeed its parent Directive) that the First Respondent has a discretion to revoke but is not required to exercise that discretion... Rather the Directive and the 2015 Regulations both enable revocation in circumstances where this is a proportionate exercise of discretion. This is an important distinction."

 

98.         Later, the learned judge noted (at para. 124) that the reasoning of the Supreme Court in U.M. is to the effect that "...a decision maker might conclude that it is appropriate to revoke with retrospective effect in some instances but not others...".  In light of the foregoing, given the fact that the Minister specified termination dates in respect of each of both temporary review permissions and did not revoke either of these, it seems to me that it would be for this Court to act without jurisdiction and to trespass, impermissibly, on the Minister's discretionary powers were this Court to hold that either or both of the review permissions were revoked.

 

Certainty

99.         On the topic of certainty, the facts in this case include that each of the temporary review permissions had a specific and limited purpose and expiry date and at no stage was either revoked by the Minister. Thus, there is absolutely no uncertainty. Widening out the analysis to encompass the EUTR permissions which the Minister declared to be void ab initio, it is important to note the Supreme Court's analysis of the concept, in U.M.

 

Void ab initio

100.      From para. 119 of her decision, Ms. Justice Dunne stated:-

"...The use of the phrase ab initio was considered in Administrative law in Ireland (5^th Edition, Round Hall 2019) at para. 11 - 22 onwards, in the context of decisions struck down as being unlawful. As the authors say, at 11–22:-

"The starting point is that once a decision is declared to be unlawful by a competent court, the decision is void ab initio and can have no continuing effect.  However, cases such as Shelly and Galvin would appear to represent the high-watermark of the classic doctrine of invalidity, as the rule that ultra vires decisions are a nullity is (in either its constitutional or common law form) subject to considerable qualification. As Costello J. remarked pregnantly in O'Keeffe v An Bord Pleanála:-

'It is usual to say that an ultra vires decision is void and a nullity, but it is clear that it is wrong to conclude that such decisions are completely devoid of legal consequences' ". "

A relative concept

101.      Having quoted paras 11–23 to 11–26, Dunne J. went on to state:-

"121.    While I appreciate that the comments made by the authors in the passages just referred to concerned cases in relation to decisions that are found to be ultra vires, it seems to me that there are some observations that may be made. Indeed, the final observation made at para. 11–27 is worth observing:-

'Invalidity is a relative concept and the courts have refrained from pushing that concept to extremes.'

122.     In the course of a footnote, the authors referred to a quotation from O'Donnell J., as he then was, in the case of Cullen v Wicklow County Manager [2010] IESC 49, at para. 19, [2011] 1 IR 152, at 161 where he observed that:-

'Invalidity is a relative and not an absolute concept, and is furthermore dependent upon court determination - something which is by definition not available to a County Manager when he or she receives a s. 4 motion...  The position has now been reached where it may be said that an invalid act is an act which a Court will declare to be invalid. As Professor Wade observed '...the truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances.'

123.     To that the authors added the phrase "and, it might be added, at the right time".  This commentary merely highlights the fact that what is, or is not, invalid may depend upon particular circumstances. In the particular circumstances of this case, one can see that, if the Minister had chosen not to revoke the declaration of refugee status, notwithstanding that he was entitled to do so, the position would be that, far from being a declaration of refugee status which was void ab initio, the declaration would remain in being to all intense and purposes. To paraphrase what was said by the authors in the passages referred to above, until a declaration is set aside, it enjoys a presumption of validity, and will be regarded as binding. Indeed, another observation made by the authors is of assistance. At para. 11–26, as set out above, they highlighted the statutory provisions and their relevance to answering the issues that arise in any particular situation in relation to the consequences of invalidation." (emphasis added).

 

Particular circumstances

102.      Thus, even if the Minister had explicitly revoked both review permissions (or if this Court had come to the view that the legal effect of the decision to revoke the applicant's permission under EU law was to revoke, not only his EUTR permissions but to revoke or render invalid both review permissions) it does not necessarily mean that the applicant comes within the Scheme.  Why?  Because the Supreme Court has held in U.M. that:"(4) The effect of a finding of invalidity in relation to a decision will depend on the particular circumstances of the case" (see p. 27 of the reported decision). Thus, despite the skill with which the submission was made, I cannot accept that the ratio of U.M. is limited exclusively to the interpretation of s. 21(1)(h) of the Refugee Act, 1996. As to the particular circumstances of this case, the applicant is someone who from 2013 onwards, with the exception of only a few weeks, has had the benefit of a series of permissions to reside in this State. During their currency he could not, lawfully, have been required to leave nor, lawfully, prevented from working. Thus, as a matter of fact, his particular circumstances are markedly different from those of an undocumented person in the sense described in the Scheme. 

 

In force

103.      As Ms. Justice Dunne stated (at para. 124) in U.M. "...while a declaration is in force, and until such time as it is revoked, it must be regarded as being valid".  Even though, for the purpose of EU residence rights, the Minister declared the applicant's EUTR permissions to be void ab initio, that decision plainly does not 'undo' time or change past facts. It does not render it factually inaccurate to say that the applicant had the benefit of a series of permissions which were valid at the times the applicant relied upon them.

 

Effect

104.      The Minister certainly declared the EUTR permissions to be void ab inito. Thus, for the purpose of applying for EUTR residence based on marriage, the significance and effect of that decision is clear, i.e. the applicant has no such rights. However, guided by U.M, I take the view that the applicant has not established the effect of this declaration for the purpose of an entirely separate and discretionary Scheme. The applicant has not established that the benefit which he, in fact, derived from his EUTR permissions, during the currency of those permissions, is irrelevant for the purposes of this distinct Scheme aimed at the undocumented.

 

Obtaining an advantage or entitlement

105.      Bearing in mind that Regulation 27 entitles the Minister to revoke residence permission where it was claimed on the basis of "fraud or abuse of rights" and Regulation 28 makes clear that this includes "a marriage of convenience", it does not seem unfair to characterise the applicant's case as one in which he seeking an entitlement to the 'fruits' of fraud (in that he asserts that he qualifies for the Scheme because the Minister found his marriage to be one of convenience (i.e. entered into for the sole purpose of obtaining rights he was not entitled to). In this regard, the observations of Mr. Justice McKechnie in the Supreme Court's decision in M.K.F.S. v Minister for Justice [2020] IESC 48, seem relevant:

"The whole point of having a marriage of convenience provision under Regulation 28 is to prevent one obtaining an advantage or entitlement, in the general immigration process, by reason of that fact." (see para. 66)

 

106.      The foregoing seems to me to undermine the proposition that, if the applicant can establish that his residence permissions were invalid by reason of his marriage of convenience, it necessarily follows that he must gain the advantage of qualification under the Scheme. It also needs to be borne in mind that the Scheme itself is purely ex gratia. 

 

Ex gratia scheme

107.      In Bode v Minister for Justice [2008] 3 IR 663 ("Bode"), the Supreme Court described an analogous Scheme "..giving benefits of residency to a category of foreign nationals.." for the purpose of addressing "in an administrative and generous manner a unique situation which had occurred in relation to a significant number of foreign nationals within the State" as being "a gift, in effect".  More recently, in Rana & Ali v Minister for Justice [2024] IESC 46, Ms. Justice O'Malley reaffirmed the Bode principles describing the Scheme under consideration as "... an ex gratia, executive scheme" where an rights an individual might have "remain unaffected by an adverse decision".  In addition, the present Scheme was described by O'Regan J. in E.L. v Minister for Justice [2024] IEHC 647 (at 9.10) as being "...an ex gratia scheme which does not engage in legal rights of the parties but merely confers a gift or benefit to certain parties".

 

In conclusion

108.      Whilst the following is not intended to be a substitute for or summary of this judgment, whereas the applicant submits that it is consistent with EU jurisprudence that any rights grounded on an abuse would be void ab initio, it seems to me that the right to reside in the State pursuant to the two temporary review permissions was not grounded or based on the marriage of convenience. Even if I am wrong in that view, it is a matter of fact that neither review permission was ever revoked or declared invalid by the Minister. Both came to an end by expiring. The gravamen of the applicant's case is that the finding of fraud, i.e. a marriage of convenience, "cannot conceivably allow any permission granted to the applicant to be valid".  Even if there had been an expressed revocation, by the Minister, of both of his temporary review permissions (and there was not) and even if this Court had come to the view that both temporary review permissions were invalid (and it has not) the applicant has not established that the intention or effect of any such revocation was to bring him into the category covered by the Scheme. The guidance given by the Supreme Court in U.M. makes clear that the situation is far from as simple as the proposition that 'fraud unravels all'. The legal effect and consequences of a finding of invalidity must be considered in context and will depend on the particular circumstances. From the point at which he received the first EUTR permission (5-year residence card) in 2013, the applicant possessed a series of permissions which were valid at the time. He relied on those, gaining a range of advantages not available to the category of persons to whom the Scheme is directed. The applicant was not, as a matter of fact 'undocumented' in the sense in which that term is explained in the Scheme policy paper. The applicant has not established that the rights which he, as a matter of fact, enjoyed by virtue of and during the currency of his EUTR permissions, must be ignored for the purpose of the Scheme, notwithstanding the fact that the applicant never faced the challenges experienced by those for whom the Scheme was introduced. For the reasons set out in this judgment, the applicant has failed to establish any entitlement to relief and his claim must be dismissed.