No Implied Revocation of Stand‑Alone Temporary Permissions and Their Effect on “Undocumented” Status under the 2022 Regularisation Scheme

Commentary on MSB v The Minister for Justice [2025] IEHC 566

1. Introduction

This judgment of O’Regan J in the High Court (MSB v The Minister for Justice, [2025] IEHC 566, 30 October 2025) sits squarely in the line of recent litigation challenging refusals under Ireland’s Regularisation of Long-Term Undocumented Migrant Scheme 2022 (“the Scheme”).

The case concerns an applicant who:

entered Ireland as a student in 2013;
married an EU citizen in 2014 and obtained an EU residence card (Stamp 4 EUFAM);
had that marriage later deemed a marriage of convenience and his EU-facilitated residence card revoked under the European Union (Free Movement of Persons) Regulations 2015 (“the 2015 Regulations”) and Article 35 of Directive 2004/38/EC (“the 2004 Directive”);
obtained temporary Stamp 4 permissions in 2020–2022 while a review of the marriage-of-convenience decision was pending; and
subsequently applied under the Long-Term Undocumented Scheme, where those very temporary permissions were treated by the Minister as disqualifying him (since they meant he was not “undocumented” for the requisite four-year period).

The central controversy is whether those temporary permissions, granted while an EU Treaty rights review was underway, should:

be treated as valid stand‑alone immigration permissions (thereby breaking the continuity of being “undocumented” and disqualifying the applicant under the Scheme), or
be regarded as automatically or implicitly invalidated/revoked when the Minister upheld the marriage-of-convenience finding, thus leaving the applicant effectively “undocumented” for Scheme purposes.

This case is one in a batch with similar factual patterns. The High Court had previously considered the core issues in a “test case”, MA v Minister for Justice [2025] IEHC 135 (“MA”), decided by Heslin J. In MSB, the applicant tried to distinguish his situation from MA and invoked additional authority which had not been canvassed in that earlier case.

The outcome is important for:

the interpretation of the Regularisation Scheme’s “undocumented” requirement;
the legal status of temporary permissions granted pending EU Treaty rights reviews;
the scope of revocation under Regulation 27 of the 2015 Regulations and Article 35 of the 2004 Directive; and
the balance between EU law protections, national immigration discretion, and regularisation policy.

2. Summary of the Judgment

2.1 The Decision Challenged

The applicant sought an order of certiorari quashing the review decision of 21 November 2023, by which the Minister:

upheld an earlier decision of 14 April 2023 refusing the applicant’s application under the 2022 Regularisation Scheme; and
relied on the fact that the applicant had held temporary Stamp 4 permissions from 6 August 2020 until 18 February 2022, thus failing the Scheme requirement of being “undocumented” for at least four years prior to 31 January 2022.

The applicant argued that those temporary permissions:

were granted on the basis of the (later-impugned) marriage to an EU citizen; and
had, or should be treated as having, been retrospectively invalidated or revoked when the marriage was found to be a marriage of convenience and the EU residence card was retrospectively deemed never valid.

2.2 Core Outcomes

O’Regan J held:

No right to remain pending review: There is no right under the 2015 Regulations to remain in the State pending a review of an EU Treaty rights decision (specifically a marriage-of-convenience finding). The temporary Stamp 4 permissions granted between 2020–2022 were an exercise of ministerial discretion, not a legal entitlement under EU law or the 2015 Regulations.
Temporary permissions are stand‑alone and were never revoked: The permissions granted from 6 August 2020 to 18 February 2022 were stand-alone discretionary permissions, not “ancillary permissions” automatically tied to the marriage. They were not revoked or invalidated in the 2019 or 2022 decisions. The revocation language in those decisions related only to:
- the EU residence card granted on 16 October 2015; and
- the associated permissions between 16 October 2015 and 22 June 2019 (and, as per earlier letter, from 3 November 2014 to 13 May 2015),
and did not extend to later temporary permissions granted in 2020–2022.
No basis to imply retrospective invalidation of temporary permissions: Drawing on the Supreme Court in UM (A Minor) v Minister for Foreign Affairs and Trade [2022] IESC 25 and the High Court in AKS v Minister for Justice [2023] IEHC 1, the Court held that revocation is not automatic or implied; it must be formally and expressly effected. No such revocation occurred regarding the 2020–2022 permissions.
Challenge based on lack of reasons fails: The applicant’s argument that the Minister unlawfully failed to give reasons for granting the temporary permissions was rejected because:
- the applicant never sought reasons at the time;
- the permissions were beneficial and clearly understood by the applicant's solicitors as an act of discretion; and
- even if there was some deficit in reasons, there would be no utility in granting declaratory relief, since the temporary permissions were not part of the impugned decision and were in any event not revoked.
No breach of equal treatment / treating like cases alike: The applicant claimed that similarly placed applicants (with marriage-of-convenience findings) had been granted permission under the Scheme while he was refused. O’Regan J held that those applicants were not comparable to the applicant because they had not sought temporary permissions pending review. Availing of such “additional Ministerial indulgence” placed the applicant in a materially different position.
Judicial comity and adherence to MA: The Court followed, in full, the reasoning of Heslin J in MA v Minister for Justice, emphasising judicial comity (relying on Hughes v Worldport Communications Inc [2005] IEHC 189). The additional authorities cited (especially Druzinins and Saleem) did not alter the analysis.
Result: The application for judicial review was refused. The Minister’s decision under the Regularisation Scheme stands. The Court indicated a provisional view that the Minister is entitled to costs, subject to short written submissions.

3. Legal and Factual Background

3.1 Immigration and EU Treaty Rights Timeline

The key factual steps (simplified) are:

9 September 2013: Applicant arrives in Ireland on student permission (expires 30 September 2014).
20 August 2014: Applicant marries an EU citizen.
13 October 2014: Application for a residence card under:
- Directive 2004/38/EC (the EU Free Movement Directive).
- European Communities (Free Movement of Persons) Regulations 2006 (SI 656/2006).
3 November 2014: Pending that application, the Minister grants a temporary Stamp 4 permission. Importantly, this is expressly stated not to acknowledge any entitlement under EU Treaty rights.
13 April 2015: Residence card application refused (no evidence that the EU spouse was working in the State). Right of review is indicated under Regulation 21 of the 2006 Regulations.
22 April 2015: Review sought.
16 October 2015: Review succeeds. Applicant is granted a five-year substantive residence card (EUFAM Stamp 4) from this date.
7 May 2019: Minister writes indicating that the marriage is believed to be a marriage of convenience. The letter warns that, if so found, the EUFAM permission of 16 October 2015 will be deemed “never valid”, and that the earlier temporary permission from 3 November 2014 will also be deemed never valid.
22 June 2019: Minister formally finds the marriage to be a marriage of convenience and states that:
- the EU residence card and associated permission from 16 October 2015 to 15 October 2020;
- and the permission from 3 November 2014 to 13 May 2015;
are deemed never to have been valid and are revoked under Regulation 27(1) of the 2015 Regulations and Article 35 of the 2004 Directive.
17 July 2019: Applicant seeks a review under Regulation 25 of the 2015 Regulations and requests temporary permission to remain pending the review.
17 July 2019: The Minister initially indicates that no temporary permission will issue pending review.
5 August 2020: Applicant’s solicitor writes, noting that he is without immigration permission and requesting temporary permission for the duration of the review.
6 August 2020: Minister grants temporary Stamp 4 permission until 10 May 2021 (later clarified to 16 May 2021), stressing that:
- it is not an acknowledgement of EU Treaty rights; and
- it is pending the outcome of the review.
25 May 2021: Solicitor notes the expiry of the temporary permission and requests a further one.
27 May 2021: Further temporary Stamp 4 permission is granted until 18 February 2022, again with explicit wording that it is not an acknowledgement of EU rights, but permits employment.
29 March 2022: The Minister’s review decision issues. It:
- upholds the 22 June 2019 marriage-of-convenience decision;
- states that the marriage was never genuine, will be disregarded for immigration purposes, and “any permissions provided to you on the basis of this marriage were not valid permissions”; and
- explicitly affirms the revocation of the residence card and the permission “between 16 October 2015 and 22 June 2019”.
Critically, it does not refer to, or purport to revoke, the 2020–2022 temporary permissions.

3.2 Application under the Regularisation Scheme

22 April 2022: Applicant applies under the 2022 Regularisation Scheme for permission to remain permanently in the State.
14 April 2023: Minister refuses the application, on the basis that the applicant does not meet the eligibility criterion of being undocumented for at least four years before 31 January 2022. The Minister relies on the applicant’s temporary Stamp 4 permissions from:
- 6 August 2020 to May 2021; and
- 27 May 2021 to 18 February 2022.
15 May 2023: Applicant appeals, arguing that these temporary permissions had already been deemed invalid because they were based on the marriage of convenience and thus should not be counted against him as “lawful” residence.
21 November 2023: Appeal (review) decision upholds the refusal. The Minister finds that the temporary permissions were not revoked, hence the applicant was not undocumented for the required four-year period.

3.3 Proceedings and the MA Test Case

The judicial review proceedings in MSB were among a cluster of cases with substantially similar factual patterns (but different dates). One such case, MA v Minister for Justice (Record No. 2024/4JR), was selected as a test case. In MA, similarly:

a marriage to an EU national was deemed a marriage of convenience;
the EUFAM residence card and permissions were retrospectively revoked;
the applicant sought a review under Regulation 25 and was granted temporary permissions pending that review; and
those temporary permissions were relied on to find that the applicant did not satisfy the Scheme’s “undocumented” requirement.

Heslin J in MA had already upheld the Minister’s refusal and rejected arguments virtually identical to those advanced in MSB. In the present case, the applicant attempted:

to distinguish his circumstances from those of MA; and
to invoke two earlier decisions (Druzinins and Saleem) that had not been addressed in MA.

4. Precedents and Authorities Cited

4.1 Druzinins & Anor v Minister for Justice [2010] IEHC 84

In Druzinins, Cooke J considered Regulation 7(1)(c) of the 2010 Regulations (the predecessor regime to the 2015 Regulations) and, in particular, the effect of:

the Minister’s obligation to issue an acknowledgment of receipt of a family member residence card application; and
Regulation 7(6), which implicitly allowed the family member to remain pending the decision.

Cooke J held that this “acknowledgement” was clearly designed to legitimise the presence of the family member in the State while a decision on the residence card application was pending. He further expressed the view that:

where a negative decision had been made, and a review requested, the Minister is under an obligation to continue the effect of that acknowledgement until the review has been determined; in that context, it would not be unreasonable to expect a temporary extension of a Stamp 4 permission.

The applicant relied on Druzinins to support a broader proposition that there is a right (or at least an obligation on the Minister) to maintain lawful stay pending review, and that permissions issued in that context are ancillary to EU Treaty rights and must fall with any later revocation of those EU rights.

O’Regan J, however, read Druzinins in light of the later authority of AM v Commissioner of An Garda Síochána (discussed below), and the text of the 2015 Regulations. She concluded that Druzinins cannot be taken to establish any general right to remain pending a review under Regulation 25 of the 2015 Regulations. Rather, the 2015 regime is structurally different and, crucially, includes an explicit right to seek a suspension of removal orders in some contexts, thereby indicating that the legislature knew how to confer a right to remain when it wished to.

4.2 AM v Commissioner of An Garda Síochána (Art. 40 Enquiry, 2019/674/SS)

This case, decided first ex tempore in the High Court (Pilkington J) and then on appeal by Birmingham J in the Court of Appeal, is central to the present judgment.

In AM, the applicant argued that he had a right to remain in the State while a review of his EU Treaty rights decision under Regulation 25 was pending. Both courts rejected this argument, holding that:

Regulation 25 of the 2015 Regulations does not confer a right to remain in the State while a review is underway;
any right to seek a suspension of enforcement arises only in limited circumstances (notably in relation to removal orders, under Reg. 25(6)-(7)); and
absent an express provision, there is no implied right to stay pending review.

O’Regan J explicitly follows AM, holding that:

“the foregoing jurisprudence of AM is sufficient authority to say that an applicant does not have a right to remain based on seeking a review of a decision finding a marriage of convenience.” (para. 13)

This finding neutralises the applicant’s attempt to claim that the 2020–2022 permissions arose from a right to remain. Instead, the Court categorises those permissions as purely discretionary ministerial indulgences, not rights tied to EU Treaty protections.

4.3 Saleem v Minister for Justice (No. 1) [2010] IEHC 386

Saleem concerned the adequacy and clarity of pleadings and the requirement that the Minister clearly plead matters of law relied on. The applicant in MSB invoked Saleem to argue that the Minister had:

failed to indicate the legal basis for granting the temporary permissions; and
introduced in the Statement of Opposition a new justification, namely the fact that the temporary permissions had not been revoked – a rationale not, allegedly, present in the impugned Scheme decision.

O’Regan J rejected this use of Saleem:

She found that the assertion that “non‑revocation” was a new ground was incorrect; this feature was implicit in and consistent with the decision itself.
She considered that Saleem dealt with equivocation in pleadings in a different context and that its absence in MA was immaterial.

4.4 UM (A Minor) v Minister for Foreign Affairs and Trade [2022] IESC 25

In UM, the Supreme Court considered the revocation of a declaration of refugee status. At para. 45, Dunne J stressed the need for certainty and held that:

“how could revocation date from any period other than the date of formal revocation…? 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.”

Applied to MSB, this principle supports the proposition that:

revocation is not automatic or retrospective by default;
revocation must be based on a formal decision specifically identifying the rights or status being revoked; and
where there has been no explicit revocation decision in respect of a given permission, the Court should not infer that it has been revoked.

This directly undermines the applicant’s attempt to treat the 2020–2022 permissions as automatically “invalid” or “revoked” merely because the underlying marriage was found to be one of convenience.

4.5 AKS v Minister for Justice [2023] IEHC 1 and Imran v Minister for Justice [2024] IECA 83

In AKS, Phelan J analysed Article 35 of the 2004 Directive, which allows Member States to:

adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience.

Phelan J emphasised:

“From the language used what appears to be envisaged is a power to terminate rights acquired under the Directive. On my reading the Directive does not require or even permit automatic revocation. I base this view on the fact that Article 35 requires that ‘any such measure shall be proportionate and subject to procedural safeguards…’”

Burns J in the Court of Appeal endorsed this reading in Imran v Minister for Justice [2024] IECA 83.

O’Regan J relies on AKS (and indirectly Imran) to support two key points:

Article 35 does not require or authorise automatic, blanket retrospective invalidation of all immigration permissions connected in some factual way with a marriage of convenience;
instead, the Minister must adopt a specific measure which is proportionate, procedurally fair, and which explicitly identifies what is being terminated or withdrawn.

Thus, where the decisions of 2019 and 2022:

explicitly revoked the EU residence card and the permissions held from 3 November 2014 to 13 May 2015 and from 16 October 2015 to 15 October 2020 (and 16 October 2015 to 22 June 2019, per the review decision); but
did not mention or purport to revoke the 2020–2022 temporary permissions,

the Court is not entitled to infer that those later discretionary permissions were also invalidated.

4.6 MA v Minister for Justice [2025] IEHC 135

MA is the key “test case” on the same legal issues. Heslin J held that:

the temporary review permissions were granted after the marriage had been found to be of convenience and after the review was initiated;
they were granted because of the review, not because of the marriage itself (para. 78 of MA);
they were stand‑alone temporary permissions, an exercise of executive discretion, and not “ancillary” EU residence rights; and
there was no implied intention to revoke those temporary permissions in the review decision (para. 82).

O’Regan J explicitly adopts this analysis in MSB, referencing, in particular:

para. 59 of MA: the Minister had given the applicant “two stand‑alone temporary permissions pending the outcome of the review”;
para. 78 of MA: the permissions were not granted because of the marriage, but because a review was pending; and
para. 82 of MA: rejection of any implied revocation of those temporary permissions; the respondent could have revoked them expressly but did not.

4.7 Hughes v Worldport Communications Inc. [2005] IEHC 189 – Judicial Comity

The principle of judicial comity was discussed in Hughes, where Clarke J emphasised that High Court judges should, in the interests of certainty and orderly development of the law, generally follow decisions of their colleagues unless there is a compelling reason not to do so, such as where the earlier decision is clearly wrong or inconsistent with higher authority.

In MSB, O’Regan J applies this principle, noting that the applicant had not shown any error in Heslin J’s reasoning in MA. The additional authorities cited do not undermine the legal framework applied there. Accordingly, she is “happy to follow” MA in all respects relevant to the present case.

5. The Court’s Legal Reasoning

5.1 No Right of Residence Pending Review under the 2015 Regulations

The applicant attempted initially to invoke Druzinins to suggest that there is (or should be) a right to remain pending a review of EU Treaty rights. However:

Regulation 25 of the 2015 Regulations governs reviews of decisions relating to EU rights.
Sub-regulations 25(6) and 25(7) explicitly provide only for an application to suspend enforcement of a removal order pending review, and even that only in defined circumstances.
There is no general provision equating a review application with a right to remain in the State.

Following AM, O’Regan J concludes (para. 13) that the 2015 Regulations do not create any general right to reside in the State pending a review under Regulation 25, including in marriage-of-convenience cases.

Interestingly, the applicant later conceded in oral submissions that he was not claiming a right to reside pending the review, yet persisted in seeking to treat the temporary permissions as if they were tied to such a right. The Court notes this internal tension (para. 14).

5.2 Characterisation of the 2020–2022 Temporary Permissions

The core legal question is whether the temporary permissions granted between 2020 and 2022:

were granted “on the basis of” the marriage and thus should be retrospectively invalidated alongside the EU residence card; or
were stand‑alone discretionary permissions that subsist independently of the marriage finding.

O’Regan J carefully analyses the contemporaneous correspondence (para. 28), which shows that:

The applicant’s solicitors, on 5 August 2020, acknowledged that the applicant was residing without immigration permission and asked the Minister to “please issue” a temporary permission while the review was ongoing.
The Minister’s replying letter of 6 August 2020:
- granted a temporary Stamp 4 permission;
- emphasised that it was not an acknowledgment of any entitlement under EU Treaty rights; and
- tied the permission explicitly to the pending review decision. The legal basis cited was not the Regulations but an exercise of discretion.
The same structure was repeated in May 2021: the solicitor requested an extension; the Minister granted a further temporary Stamp 4 entirely on a discretionary executive basis, again expressly disavowing any EU Treaty rights foundation.

From this, the Court reasons:

the applicant’s legal representatives clearly understood that they were seeking indulgence, not invoking a legal right;
the Minister’s letters directly contradict the claim that the permissions were based on the marriage or on any EU rights; and
the permissions therefore cannot be recharacterised as “ancillary” to the EU residence card. They are distinct, self-contained permissions granted on humanitarian/administrative grounds while the review was pending.

This matches and reinforces the characterisation in MA that these are “stand‑alone temporary permissions”.

5.3 Scope of the Revocation Decisions (2019 and 2022)

The applicant argued that the revocation decisions (especially the 2019 decision and its 2022 confirmation) had the effect of retrospectively invalidating all permissions related “to the marriage”, which he sought to extend to the 2020–2022 temporary permissions.

The Court examines the wording of the decisions in detail (paras. 17–20).

2019 decision (22 June 2019):
- invokes Regulation 27(1) of the 2015 Regulations and Article 35 of the 2004 Directive;
- states the marriage will be disregarded for immigration purposes; and
- explicitly deems the permission held pending the initial residence card decision (3 November 2014–13 May 2015) and the substantive permission (16 October 2015–15 October 2020) to be never valid, and revokes the residence card.
Review decision (29 March 2022):
- reiterates that the marriage was never genuine and that “any permissions provided to you on the basis of this marriage were not valid permissions”; and
- explicitly describes the permission held between 16 October 2015 and 22 June 2019 as “not a valid permission, and it has been revoked”.

Crucially, the Court notes:

the 2019 decision could not possibly have related to permissions granted in 2020–2022, as they did not yet exist (para. 20);
the 2022 review decision, while referencing permissions based “on the basis of this marriage”, then specifically identifies only the residence card and the 2015–2019 permission as revoked;
the 2020–2022 temporary permissions are not mentioned at all in the revocation decisions.

Reading the decisions textually and in light of UM, AKS and MA, the Court concludes that:

only the EU residence card and the specifically identified permissions from 2014–2015 and 2015–2019 were revoked;
there is no legal basis for extending the revocation to the later, distinct temporary permissions; and
there is no basis to grant the applicant’s requested declaration that retrospective invalidation of the EU residence card “applies equally to any ancillary permissions granted on the same basis” (para. 23).

5.4 The “Reasons” Argument

The applicant argued that:

the basis for granting the two temporary permissions is unknown;
the review process was not a standalone application, but was “ancillary” to the residence card and thus the permissions must also be ancillary to the marital status;
the Minister’s failure to give reasons for granting the temporary permissions was unlawful, opaque, and a breach of his constitutional right of access to the courts.

O’Regan J rejects this argument for several reasons (paras. 25–32):

Timing and conduct of the parties: The “reasons” issue was never raised with the Minister at the time the temporary permissions were granted nor at any stage prior to the Statement of Grounds. The applicant’s explanation – that he simply assumed they were based on the marriage – is not accepted as a basis to blame the Minister.
Correspondence shows understanding of discretion: The solicitor’s letters explicitly request permissions as a favour and acknowledge that the applicant has no current permission; the Minister’s responses clearly state that the Stamp 4s are not tied to EU treaty rights. This undermines the claim that the basis was unknown or that it was reasonable to assume a marriage basis.
Minister’s residual discretion: The Minister retains a broad discretionary power to grant immigration permission outside statutory schemes. Therefore, the applicant’s claim that there was “no stand-alone basis” for the permissions is incorrect (para. 27).
Scope of the impugned decision: The only decision under challenge is the Scheme review decision of 21 November 2023, not the 2020 or 2021 decisions granting temporary permissions. Those earlier decisions are now long past and had conferred benefits on the applicant.
Lack of utility: Even if (contrary to the Court’s view) there were some deficit in reasons at the time of granting the temporary permissions, any declaration now about that defect would have no practical utility, especially since:
- the temporary permissions were clearly not revoked; and
- the challenge in these proceedings relates to the Scheme decision, not to those prior grants of permission themselves.

5.5 Equal Treatment and “Like Cases”

The applicant claimed that:

other individuals who had marriages of convenience findings had been granted Regularisation Scheme permissions; and
his application was unreasonably distinguished only because he appealed and accepted temporary permissions pending review.

The Court’s response (paras. 33–35) is twofold:

Different factual position: Those other individuals had not obtained temporary review permissions from 2020–2022. The applicant did. Therefore, they are not true comparators because:
- they did not receive “additional ministerial indulgence”; and
- their timeline of being “undocumented” is materially different.
Consistency with MA: In MA, the Court had already upheld a refusal in circumstances closely analogous to the applicant’s. The Minister’s approach is consistently applied to persons in the applicant’s actual position.

Consequently, the allegation of unequal treatment or discrimination between like cases fails.

5.6 Judicial Comity and Following MA

The applicant contended that MA did not account for certain authorities (notably Druzinins and Saleem) and urged the Court to depart from it.

O’Regan J finds that:

those authorities do not displace the reasoning in MA when properly understood (see the analysis above);
the applicant had not identified any demonstrable error in Heslin J’s reasoning; and
the principle of judicial comity (from Hughes) weighs heavily in favour of maintaining uniformity where two High Court judges are dealing with materially identical issues.

She therefore follows MA on all relevant points, including the characterisation of the temporary permissions and the rejection of implied revocation.

6. Complex Legal Concepts Explained in Plain Terms

6.1 “Undocumented” Status under the 2022 Regularisation Scheme

The Scheme (not reproduced in full in the judgment) required applicants generally to have been without permission to reside in the State (“undocumented”) for at least four years prior to 31 January 2022 (or a shorter period for families with children).

Being “undocumented” in this context means:

having no current immigration permission or status recognising your lawful residence; and
not being treated as lawfully present under any statutory regime (including EU free movement or national discretionary permissions).

Conversely, if a person held a temporary Stamp 4 permission – even a precarious, review-dependent one – they were not “undocumented” for as long as that permission was valid. In MSB, the temporary permissions from August 2020 to February 2022 break the four-year undocumented period the applicant needed for the Scheme.

6.2 Marriage of Convenience and Article 35 of Directive 2004/38/EC

A marriage of convenience in EU free movement law is a marriage entered into essentially to obtain immigration or residence rights, not as a genuine marital relationship.

Article 35 of the 2004 Directive allows Member States to:

“adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience.”

However, as interpreted in AKS and Imran, this does not mean:

automatic revocation of every permission connected with the marriage; nor
retrospective invalidation without any formal decision.

Instead, Member States must:

take proportionate, individualised measures, and
respect procedural safeguards (including notice, reasons, and review mechanisms).

6.3 Revocation: Ex Nunc vs Ex Tunc

The debate in this area often concerns whether revocation operates:

ex nunc – from now on; or
ex tunc – retrospectively, as if the right had never existed.

In the applicant’s EU residence card case, the Minister purported to treat the EUFAM permission as never valid (“deemed never to have been valid”). That is a strong ex tunc form of revocation in respect of that specific card.

But the judgment shows two key constraints:

Specificity: The revocation applies only to the permissions explicitly identified – here, the EU residence card and stated date ranges. It does not automatically extend to other, later permissions that are not mentioned.
Formal decision required: Following UM, rights cannot be treated as revoked before a formal decision has been made. The 2020–2022 permissions were granted after the initial revocation; no later decision revoked them.

6.4 Ministerial Discretionary Permissions

In Irish immigration practice, the Minister retains a broad executive discretion to grant immigration permission outside of statutory schemes or formal visa categories. These permissions may be granted:

on humanitarian grounds;
to avoid hardship during prolonged administrative processes; or
to facilitate the fair conduct of reviews or appeals.

Crucially:

they do not necessarily arise from any legal right or entitlement; and
their existence still means the person is lawfully present and thus not “undocumented”.

In MSB, the 2020–2022 Stamp 4s were such discretionary permissions granted because a review was pending and at the applicant’s request. They were not an acknowledgment of EU Treaty rights and not part of the EU free movement statutory framework.

6.5 Judicial Review vs. Appeal on the Merits

This case is a judicial review, not an appeal on the merits. That means the Court is concerned with:

the lawfulness of the decision-making process;
whether the Minister acted within powers, took into account relevant considerations, gave adequate reasons, etc.;
not whether the Court would have reached the same substantive decision under the Scheme.

Accordingly, even if the outcome appears harsh – the applicant is penalised under the Scheme for having accepted temporary lawful status – the Court’s focus is on whether the Minister’s interpretation of “undocumented” and of the status of the temporary permissions is legally sustainable, rather than whether it is optimal policy.

7. Impact and Significance

7.1 For Migrants and Scheme Applicants

The case cements a significant and, for some, counter‑intuitive rule: accepting temporary discretionary permission pending a Treaty-rights review may disqualify a person from “undocumented” regularisation schemes that rely on continuous non‑permission status.

Key practical implications:

Individuals who, after a marriage-of-convenience finding, did not obtain temporary permissions may well satisfy the “undocumented” requirement for the Scheme.
Those who, like the applicant (and MA), requested and benefitted from temporary Stamp 4 permissions pending review, will likely be treated as having broken the continuity of being undocumented, rendering them ineligible.
Migrants and their advisers must carefully consider the long-term consequences of requesting temporary permissions, especially where future regularisation schemes might rely on “undocumented” status.

7.2 For the Minister and Administrative Practice

The judgment supports and clarifies the Minister’s powers and obligations in several ways:

Discretion Confirmed: It affirms that the Minister has a broad discretion to grant temporary permissions pending reviews, without creating a general right to remain or an obligation to do so in every case.
No Implied Revocation: The Minister must be clear and explicit about which permissions are being revoked when acting under Regulation 27 and Article 35. Vague or overly broad language (“any permissions provided on the basis of this marriage”) will be read in context and will not automatically extend to distinct, later permissions not mentioned or contemplated at the time.
Scheme Consistency: The Minister’s interpretation of “undocumented” in the context of the Regularisation Scheme – i.e. that any lawful permission, including temporary discretionary ones, breaks continuity – has now been endorsed in both MA and MSB.

7.3 For the Development of Immigration and EU Law

The decision contributes to a coherent line of authority on three fronts:

Interaction of EU Rights and National Discretion: It distinguishes between:
- rights directly conferred by the 2004 Directive (subject to Article 35 and the 2015 Regulations); and
- separate national executive permissions that co‑exist but are not subsumed into EU free movement rights.
This helps avoid conflating EU Treaty rights with domestic humanitarian/discretionary status.
Limits of Article 35 (Abuse of Rights / Fraud): By aligning with AKS and Imran, the Court reinforces that Article 35:
- requires specific, proportionate measures; and
- does not authorise blanket, automatic voiding of all immigration permissions historically connected with a sham marriage.
Judicial Comity in a Repetitive Litigation Context: With multiple similar judicial review cases arising from the same policy and factual template, the Court’s reliance on MA (and Hughes) promotes consistency and predictability in the law, reducing the risk of conflicting High Court decisions on identical questions.

7.4 Potential Areas of Future Litigation or Policy Reform

While the decision clarifies the legal position, it may also prompt debate or reform in several areas:

Fairness of Penalising Lawful Presence: Some may argue it is harsh that applicants are effectively “penalised” under a regularisation scheme for having accepted temporary lawful status (at the State’s discretion). This is, however, a policy rather than a strictly legal issue, and would need to be addressed at the legislative or administrative-policy level.
Clarity in Future Schemes: Future schemes might expressly address how temporary permissions (especially pending reviews) are treated for “undocumented” calculations, to avoid ambiguity and litigation.
Procedural Safeguards in Revocation Decisions: Given the reliance on explicit revocation language, there may be greater emphasis placed on:
- precise identification of the permissions being revoked; and
- clear statements about what is not affected.
This could reduce arguments about implied or retrospective effects.

8. Conclusion

MSB v Minister for Justice [2025] IEHC 566 confirms and consolidates the legal framework established in MA for dealing with the intersection of:

marriage-of-convenience findings under EU free movement law;
temporary permissions granted pending reviews of those findings; and
eligibility under the 2022 Regularisation of Long-Term Undocumented Migrant Scheme.

The key takeaways are:

There is no right to remain in Ireland under Regulation 25 of the 2015 Regulations while an EU Treaty rights review is pending. Any temporary permission in that period is purely an act of ministerial discretion.
Temporary permissions granted in 2020–2022 were stand‑alone discretionary permissions, not “ancillary” to the (sham) marriage or the EU residence card. The Court rejected the argument that they were automatically or impliedly invalidated by the revocation of EU rights.
Revocation under Regulation 27 and Article 35 must be specific, formal, and proportionate. In line with UM, AKS, and Imran, the Court declined to read into the Minister’s decisions any broader, implied revocation beyond what was expressly stated.
The applicant’s claim that the Minister failed to give reasons for granting temporary permissions was dismissed as both factually unfounded (the correspondence clearly indicated the discretionary basis) and legally of no practical utility.
Assertions of unequal treatment or failure to treat like cases alike were rejected because applicants who did not receive temporary permissions are not in a comparable position to one who did.
The principle of judicial comity led the Court to follow MA absent compelling reasons to depart from it, ensuring consistency in this emerging area of immigration jurisprudence.

In the broader legal context, the judgment underscores how discretionary immigration permissions can have unintended knock-on consequences when they intersect with regularisation schemes that depend on continuous “undocumented” status. It highlights the importance of formal, explicit revocation decisions, and illustrates the courts’ reluctance to infer expansive retrospective effects absent clear statutory or administrative language.

For practitioners and applicants, the case stands as a cautionary and clarifying precedent: accepting temporary permissions breaks the undocumented period, and those permissions will not be retroactively deemed invalid simply because the underlying marriage was abusive or fraudulent, unless the Minister expressly and lawfully revokes them.

No Implied Revocation of Stand‑Alone Temporary Permissions and Their Effect on “Undocumented” Status under the 2022 Regularisation Scheme – Commentary on MSB v Minister for Justice [2025] IEHC 566