No Decision, No Chenchooliah: Prematurity and Separation of Powers in Irish Removal/Deportation Procedure

Case Comment on M v Minister for Justice [2025] IEHC 494 (High Court, 12 September 2025)

Introduction

This High Court judgment addresses whether an individual who claims potential coverage by the CJEU’s decision in Chenchooliah (C‑94/18) can, in advance of any removal or deportation decision, compel the Minister for Justice to treat his case “as one falling within the ambit of Chenchooliah” and to pre-commit to using the EU removal framework rather than the domestic deportation regime under the Immigration Act 1999. The applicant, a Pakistani national who married a UK citizen prior to Brexit, had sought and been refused an EU residence card, pursued review and interim permissions, and later made repeated requests for a temporary Stamp 1 permission said to be grounded in Chenchooliah. He also applied under the Long-Term Undocumented Migrants Scheme and was refused.

The key dispute was whether an email from the Repatriation Division on 28 September 2023—stating that “based on the factual matrix currently before the Minister,” the case “falls to be processed” under the 1999 Act—constituted a binding decision to proceed by deportation (and not under the Chenchooliah/Directive 2004/38 framework). The applicant sought, primarily, an order of mandamus compelling the Minister to consider his case as within Chenchooliah; alternatively, declarations and a stay/injunction. The High Court rejected the claim.

Core issues:

• Whether the Minister had made any “decision to expel” triggering the Chenchooliah safeguards under Directive 2004/38.
• Whether mandamus or declarations could pre-emptively compel the Minister to choose an expulsion pathway (EU removal vs domestic deportation) before any removal decision exists.
• Prematurity and separation of powers constraints on judicial review in immigration control.

Summary of the Judgment

• No decision to expel: The Court found as a matter of uncontroverted evidence that the Minister had neither decided to remove the applicant from the State nor commenced any removal procedure, whether under EU law (the 2015 Regulations/Directive 2004/38) or under section 3 of the Immigration Act 1999.
• 28 September 2023 email not a decision: The email was an “update,” caveated by the current factual matrix and subject to future review once the Scheme appeal concluded; it did not constitute a binding decision to deport or a refusal to apply Chenchooliah.
• Mandamus inappropriate: Mandamus compels performance of an existing legal duty to decide; it cannot be used to force the Minister to choose a particular decision-making route in advance of any decision to remove.
• Prematurity: Relying on Damache v Minister for Justice [2022] 1 IR 669 and Leng v Minister for Justice [2015] IEHC 681, the Court held the claim premature—no decision or proposal to deport has issued; even proposals are only rarely reviewable.
• Separation of powers: The Court refused to direct the Minister as to how to exercise the executive power of immigration control at first instance (T.D. v Minister for Education [2001] 4 IR 259; A.B. v Minister for Justice [2016] IECA 48).
• Chenchooliah engagement: Chenchooliah applies to a “decision to expel.” In the absence of such a decision here, the applicant’s reliance on Chenchooliah was misplaced.
• Alternative remedies: If a deportation process ever commences, the applicant will have multiple statutory and judicial remedies; those avenues render pre-emptive relief unnecessary and inappropriate.
• Outcome: All reliefs refused; the application was dismissed.

Factual Background and Procedural History

The applicant, born in 1984, entered Ireland in 2016, married a UK citizen in 2017, and applied for a residence card under Directive 2004/38 and the 2015 Regulations. The application was refused in October 2017 for failure to evidence that the EU spouse was exercising Treaty rights and that the couple met residency/activity requirements. A review was unsuccessful in November 2020. That review letter recorded that the EU spouse “last worked for only 12 weeks during 2019,” which the applicant later framed as recognition that EU rights had been exercised and thus that Chenchooliah safeguards should apply if removal were contemplated.

A second residence card application (December 2020) was later withdrawn; in August 2021 the applicant’s solicitors notified the Minister that the relationship had ended and sought a discretionary “Stamp 1” without an employment permit. In October 2021 and again in June 2023 the applicant’s solicitors requested “a temporary Stamp 1 under Chenchooliah.” In March 2022 he applied instead under the Scheme for the Regularisation of Long-Term Undocumented Migrants; that application and subsequent review were refused in 2023.

On 28 September 2023, the Repatriation Division emailed the applicant’s solicitors, providing an update that, based on the factual matrix then available, the case “falls to be processed” under the 1999 Act; and stating that while the Scheme appeal was pending, no intention to deport would issue, with the situation to be reviewed after the appeal. The applicant contended this was a binding decision to process the case under domestic deportation law, eschewing Chenchooliah. The Minister filed an affidavit (Ms O’Reilly, 11 October 2024) confirming unequivocally that no decision had been taken to remove the applicant at all, and no decision had been made as to whether any future removal would proceed under EU or domestic law.

Analysis

Precedents Cited and Their Influence

• Chenchooliah v Minister for Justice & Equality (C‑94/18):
  • Ratio: Member States cannot use purely domestic law to expel a third-country national family member who previously enjoyed rights under Directive 2004/38 unless the situation falls outside the Directive; if expulsion is pursued because the person no longer has a right of residence under the Directive, Article 15 applies and the procedural safeguards in Articles 30 and 31 must be observed, with no entry ban.
  • Critical trigger: The CJEU’s holding applies to “a decision to expel.” The CJEU emphasized a decision had been taken to move from the EU removal framework to a domestic deportation process, with a s. 3 proposal to deport issued.
  • Influence here: The High Court stressed the absence of any “decision to expel” in the applicant’s case; therefore, the Chenchooliah framework was not engaged. The Court expressly contrasted the present facts with Chenchooliah, which involved a concrete deportation proposal and a prior decision not to proceed by an EU removal order.
• Damache v Minister for Justice [2022] 1 IR 669:
  • Principle: Judicial review of a mere proposal is generally premature; certiorari does not lie to quash a decision that has not yet been made.
  • Influence: The Court underscored that the record here revealed neither a decision nor a proposal to deport (no s. 3(3) notification). The application was therefore even more clearly premature than the situations contemplated in Damache.
• Leng v Minister for Justice [2015] IEHC 681:
  • Principle: Review of a proposal to deport is “extremely limited,” generally confined to jurisdictional absence; the appropriate course is to make representations to the Minister under s. 3 rather than seek judicial review upstream.
  • Influence: The Court noted that, even if a proposal had issued (it had not), the applicant would still face a high prematurity threshold; here, the case fell well short of that because there was no proposal at all.
• A.B. v Minister for Justice [2016] IECA 48:
  • Principle: An applicant cannot insist on a bespoke, advance procedure to determine rights to remain; the deportation process is the Minister’s executive function, to be exercised in accordance with law, not designed by the applicant. Courts should not add “another layer” to the statutory scheme.
  • Influence: The Court viewed the applicant’s relief as an attempt to control the Minister’s process and lock in the EU removal route ahead of time—precisely the “additional layer” A.B. rejects.
• T.D. v Minister for Education [2001] 4 IR 259:
  • Principle: Judicial review limits the exercise of executive power; it does not allow courts to exercise executive functions.
  • Influence: Ordering the Minister to decide now, and to decide in a particular way (apply Chenchooliah), would overstep the judicial role and breach separation of powers.
• East Donegal Co-operative Livestock Mart v Attorney General [1971] IR 317; F.M. v Minister for Justice [2021] IECA 106; North East Pylon Pressure Campaign Ltd v An Bord Pleanála [2016] IEHC 300; RC (Afghanistan) v Minister for Justice [2019] IEHC 65:
  • Principle: Presumption of regularity—public authorities are presumed to act lawfully in exercising their functions unless shown otherwise.
  • Influence: The Court presumed that any future decision by the Minister would be made lawfully; there was “not a shred of evidence” of an intention to act unlawfully.

Legal Reasoning

• No “decision to expel,” hence no Chenchooliah trigger:
  • The essential precondition for invoking Chenchooliah—the existence of a “decision to expel”—was absent. Unlike Chenchooliah, no s. 3(3) proposal to deport had issued; the Minister had not formed any view to remove the applicant at all.
  • Therefore, the Court found that the Chenchooliah framework and safeguards were not yet engaged. The applicant’s reliance on it was “misplaced.”
• The 28 September 2023 email was not a binding decision:
  • Read objectively and in context, the email provided an “update” hedged by explicit caveats: it was based on the then-available factual matrix and subject to review after the Scheme appeal outcome.
  • Uncontroverted affidavit evidence from an Assistant Principal Officer in Immigration Service Delivery confirmed there was no decision to remove, no commencement of any removal process, and no decision as to whether Chenchooliah would apply in the future. The applicant did not seek to cross-examine or displace that evidence.
• Mandamus unavailable:
  • Mandamus compels the performance of a legally imposed duty to decide where the decision-maker has failed or unreasonably delayed. Here, there was no duty to pre-decide the applicable removal pathway. The applicant’s own correspondence had repeatedly sought a discretionary temporary Stamp 1, not a formal determination that his case fell within Chenchooliah’s ambit.
  • The High Court emphasised that this was not a delay case on any decision the Minister was obliged to make.
• Prematurity doctrine decisive:
  • Even proposals to deport are rarely reviewable; here, there was neither a deportation proposal nor a removal decision. The case was “entirely premature” under Damache and Leng.
  • The applicant’s “fork in the road” metaphor was inapt: the Minister had not taken either fork because she had not decided to remove the applicant at all.
• Separation of powers:
  • Granting relief would improperly direct the Minister as to how and when to exercise executive power in immigration control. The Court refused to “bind the hands” of the Minister to apply Chenchooliah at some future point regardless of then-prevailing facts and law.
• Alternative remedies:
  • If a s. 3 proposal to deport issues, the applicant can make statutory representations (s. 3(4)); challenge any jurisdictional defects at the proposal stage in exceptional circumstances; judicially review any deportation order made; seek revocation; and challenge any refusal to revoke. These avenues render pre-emptive judicial intervention unnecessary.

Impact

• On immigration litigation strategy:
  • Practitioners cannot obtain a pre-emptive judicial ruling compelling the Minister to select the EU removal framework (Chenchooliah/Directive 2004/38) before any decision to remove has been made. Efforts to create an “upstream” procedural stage are likely to be dismissed as premature and contrary to A.B.
  • Ministerial communications that are framed as updates, especially where caveated by “current facts” and “subject to review,” will not ordinarily be treated as binding decisions absent formal process indicators (e.g., a s. 3(3) proposal).
• On the scope of Chenchooliah:
  • The decision reinforces that Chenchooliah is engaged at the point of a “decision to expel” someone whose situation is governed by the Directive, not before. It does not oblige the Minister to predetermine the removal route in the abstract.
  • Arguments that previous ministerial correspondence tacitly acknowledges the exercise of EU Treaty rights (e.g., sporadic employment by the EU spouse) will not, by themselves, trigger Chenchooliah in the absence of an expulsion decision.
• On administrative law and evidence:
  • Uncontroverted affidavit evidence from an authorised official will be accorded significant weight where no cross-examination is sought. Attempts to infer a “decision” from ambiguous phrasing (e.g., “not a final decision”) will not prevail against clear sworn evidence to the contrary.
• Policy and process clarity:
  • The judgment encourages clarity about the legal status of departmental communications. Where the Minister intends to commence deportation, a formal s. 3(3) proposal will issue; absent that, applicants should not assume a decision has been made.

Complex Concepts Simplified

• Decision to expel:
  • A formal determination by the State to remove a person from the country. Under Chenchooliah, once a third-country national family member’s situation remains within the Directive, any expulsion must follow Article 15 and the safeguards in Articles 30 and 31.
• Removal under Directive 2004/38 vs Deportation under the Immigration Act 1999:
  • Directive removal (Article 15) is an EU-law procedure with specific safeguards and, crucially, no entry ban when the basis is simply loss of residence rights (as opposed to public policy/security grounds).
  • Deportation under s. 3 of the 1999 Act is a domestic-law process. It must start with a written proposal to deport (s. 3(3)), allow representations (s. 3(4)), and consider a range of statutory factors. It can, depending on circumstances, have different consequences.
• Mandamus:
  • A court order compelling a public body to perform a legal duty (e.g., make a decision it is obliged to make). It cannot be used to dictate how the body should decide or to force a pre-commitment to a particular route or outcome absent a duty to decide now.
• Prematurity in judicial review:
  • Court intervention is usually not available before a decision exists. Even proposals are only rarely reviewable, typically for jurisdictional absence. Applicants should normally use the statutory process (e.g., make representations, await a decision) before litigating.
• Separation of powers:
  • Courts review the legality of executive action; they do not exercise executive functions. They cannot compel a Minister to make a decision now or to adopt a specific method of decision-making in advance of the executive forming a view.
• Temporary Stamp 1:
  • A discretionary immigration permission allowing work (often without an employment permit where expressly sanctioned). It is not an entitlement under Chenchooliah; requests for such permissions fall to the Minister’s discretion.

Conclusion

M v Minister for Justice restates and sharpens the boundary between EU removal safeguards and Ireland’s domestic deportation regime by anchoring Chenchooliah to its textual trigger: a “decision to expel.” Absent such a decision, the High Court will not compel the Minister to choose a pathway, will not treat caveated departmental updates as binding decisions, and will resist attempts to create an “upstream” procedural stage via mandamus or declaratory relief. The application failed on three converging grounds: prematurity (no decision or even proposal), the absence of any duty to decide now or in a particular way, and separation of powers.

For future cases, the message is clear:

• Chenchooliah is about how expulsion must proceed once chosen, not about forcing the State to choose expulsion or to select a route in advance.
• Applicants who fear deportation must ordinarily await a formal proposal to deport and then use the statutory and judicial pathways available at that time.
• Courts will presume that future executive decisions will be lawful unless shown otherwise and will not direct the executive as to timing or method absent a clear legal duty.

The judgment therefore operates as a significant procedural precedent: it forecloses pre-emptive attempts to bind the Minister to the Chenchooliah route before any move to remove has even begun, and it underscores the discipline of prematurity and separation of powers in Irish immigration law.