Temporary “Review” Permissions Count as Lawful Residence for the Long-Term Undocumented Regularisation Scheme, Even Where an EU Residence Card Is Revoked ab initio

1. Introduction

F.A.Y. (Nigeria) (No. 2) v The Minister for Justice [2026] IEHC 112 concerns eligibility for the Minister’s administrative scheme for long-term undocumented people and their dependents to regularise their status (“the Scheme”), which opened on 31 January 2022. To qualify, an applicant had to show continuous undocumented residence (i.e., residence “without a valid residence permission”) for the four years immediately prior to the Scheme opening date (31 January 2018 to 31 January 2022) and continuing to the application date.

The Applicant’s central claim was that, because his EU residence card was revoked as invalid from the outset due to a marriage of convenience finding, the temporary permissions he received while pursuing a review of an EU Treaty Rights refusal must also be treated as void. If that were correct, he would have been “undocumented” throughout the relevant four-year period and thus eligible under the Scheme.

In the alternative, the Applicant argued that if his presence during the relevant period was “lawful”, it must have been pursuant to EU law (Directive 2004/38/EC), with the consequence that he could not be removed under section 3 of the Immigration Act 1999, but only under the EU-law removal route (Article 15 of the Directive), relying on Nalini Chenchooliah v. Minister for Justice and Equality, Judgment of the Court (Grand Chamber) of 10 September 2019 (“Chenchooliah”).

2. Summary of the Judgment

Ms Justice Nessa Cahill dismissed the judicial review. The Court held:

  • The Applicant had lawful residence during parts of the relevant four-year window because he held two temporary permissions (12 July 2017–2 March 2018; and 4 May 2018–4 August 2018) that were not revoked and simply expired. This broke the required “continuous undocumented” period and rendered him ineligible for the Scheme.
  • The Court followed M.A. v. Minister for Justice [2025] IEHC 135 (“M.A.”) and M.S.B. v. Minister for Justice [2025] IEHC 566 (“M.S.B.”), applying judicial comity principles drawn from Hughes v Worldport Communications Inc. [2005] IEHC 189.
  • The “Alternative EU Ground” failed: it amounted to an impermissible collateral attack on an existing deportation order (reinforced by XX v. Minister for Justice [2019] IESC 59), and in any event the Applicant had no relevant EU-law residence at the material times because his residence card was revoked ab initio and the temporary permissions were discretionary and not EU-law entitlements. Further, Chenchooliah was not available in a fraud/abuse-of-rights context, consistent with Yaqub v. Minister for Justice [2024] IECA 166.

3. Analysis

3.1 Precedents Cited

U.M. (A Minor) v Minister for Foreign Affairs and Trade [2022] IESC 25

UM supplied an overarching caution against simplistic “fraud unravels all” reasoning and against retrospective nullification of historic status absent clear legal basis and proportionate exercise of power. While the factual setting (citizenship derived from a parent’s refugee status) differed, the Court in [2026] IEHC 112 used UM to reject the Applicant’s attempt to infer a retroactive revocation of the temporary permissions. The judgment treats UM as pointing away from implied or automatic retrospective invalidation.

A.K.S v. Minister for Justice [2023] IEHC 1

A.K.S. addressed the discretion under Regulation 27(1) and the limits of retrospective effect, especially where vested rights (notably a child’s citizenship) would be impacted. The Court here distinguished A.K.S. on a decisive ground: it was a direct challenge to a revocation decision, whereas [2026] IEHC 112 was not—and could not be—an appeal on the merits of the EU residence card revocation. Critically, the Court deployed A.K.S. not to help the Applicant, but to reinforce that revocation ab initio is a discretionary, context-dependent act—not something to be presumed to extend to other permissions without an express decision.

M.A. v. Minister for Justice [2025] IEHC 135

M.A. was treated as the controlling High Court authority on the exact structural problem posed by the Scheme: whether “temporary review permissions” count as lawful residence such that an applicant is not “undocumented” for the required four-year period. Heslin J.’s key holdings—adopted here—were:

  • Temporary permissions pending a review are not automatically grounded in the fraudulent marriage even if the underlying EU permission is void.
  • Even if one argued they were connected, what mattered was that the permissions were never revoked or declared invalid and instead expired.
  • There is a difference between permissions pending an initial application (where Regulation 7 provides that the applicant “may remain”) and permissions pending a review (no equivalent right; it is discretionary).

In [2026] IEHC 112, Ms Justice Cahill held there was no substantial basis to distinguish M.A. on the facts and no suggestion it was wrongly decided.

M.S.B. v. Minister for Justice [2025] IEHC 566

M.S.B. fortified M.A. and reiterated that invalidation of an EU residence card does not “carry over” to invalidate ancillary temporary permissions absent an express revocation. The judgment in [2026] IEHC 112 treated M.S.B. as confirming that neither UM nor A.K.S. supports the proposition that temporary permissions are retrospectively nullified.

Hughes v Worldport Communications Inc. [2005] IEHC 189

Worldport supplied the judicial comity framework: a judge of the High Court should follow another High Court decision unless there are substantial reasons to believe it is wrong. This was essential to the result because the Court’s approach was to apply M.A. (as endorsed in M.S.B.) and to reject attempts to carve out ad hoc exceptions based on correspondence “confusion.”

Nalini Chenchooliah v. Minister for Justice and Equality, Judgment of the Court (Grand Chamber) of 10 September 2019

Chenchooliah stands for the principle that where a person previously enjoyed EU Directive residence and later falls outside the Directive’s conditions, removal must comply with Article 15 procedures rather than purely domestic deportation mechanisms. The Court held it did not assist the Applicant because:

  • His EU residence card was revoked and deemed invalid from the outset; and
  • His temporary permissions were discretionary domestic permissions, not Directive-based rights.

XX v. Minister for Justice [2019] IESC 59

XX was used to ground the proposition that immigration decisions must be challenged via the correct judicial review route within strict statutory timelines, and that later “collateral” challenges are impermissible. The Court treated the “Alternative EU Ground” as, in substance, a late attempt to undermine the existing deportation order.

Yaqub v. Minister for Justice [2024] IECA 166

Yaqub was relied upon for the proposition that Chenchooliah does not protect persons whose EU-law residence is tainted by fraud/abuse. Although the Applicant argued the fraud in Yaqub was of a different kind, the Court took the more general point: abuse of rights defeats reliance on Directive-based residence to control the removal route.

F.A.Y. (Nigeria) v. Minister for Justice [2019] IEHC 373

This earlier litigation (Humphreys J.) upheld the Minister’s finding that the marriage was a marriage of convenience and rejected the Applicant’s entitlement to EU treaty rights. Ms Justice Cahill treated that history as closing off attempts to relitigate the marriage-of-convenience finding and noted Humphreys J.’s observation that free movement rights cannot be relied upon in cases of abuse of rights.

S.M.A. v. Minister for Justice [2023] IEHC 642

The Court held the Applicant’s reliance on S.M.A. was misplaced because it arose from a challenge to a marriage-of-convenience finding, whereas in the present case that finding had already been upheld, and no direct challenge to revocation was before the Court.

3.2 Legal Reasoning

(i) The decisive factual/legal distinction: “revoked” versus “expired” permissions

The Scheme turns on whether an applicant was without a valid residence permission continuously for four years. The Applicant’s case required the Court to treat the temporary permissions as legally non-existent (void from the outset), thereby preserving “undocumented” continuity.

The Court rejected that approach on the record: the Minister’s correspondence confirmed the temporary permissions remained in force until their expiry dates and were not revoked. Any confusing phrasing in later letters (e.g., references to “EU Treaty Rights” up to 4 August 2018) was treated as an error of description, not a change in legal character.

(ii) Why the temporary permissions did not fall with the EU residence card

The Applicant argued it was “illogical” for the residence card to be void while temporary permissions were valid. The Court’s reasoning mirrors M.A. and M.S.B.:

  • The EU residence card was addressed under Regulation 27(1) (fraud/abuse of rights) and was later clarified as revoked and invalid from the outset.
  • The temporary permissions were stand-alone discretionary permissions, granted expressly pending the review process, and repeatedly stated not to acknowledge EU treaty entitlement.
  • Because discretionary permissions were not expressly revoked, they retained legal effect for their duration, regardless of the ultimate EU-law fraud finding.

(iii) Judicial comity as the method of resolution

A striking feature of the judgment is how it frames the case as already settled at High Court level by M.A., subsequently followed in M.S.B.. Applying Hughes v Worldport Communications Inc. [2005] IEHC 189, Ms Justice Cahill held there was no substantial reason to depart from M.A.. This gives the decision a “systemic” function: it stabilises Scheme-related litigation by insisting on consistent treatment of temporary review permissions.

(iv) The Alternative EU Ground: procedural bar and substantive failure

The Court treated the EU-law argument as failing on multiple independent bases:

  1. Collateral attack/time limits: challenging the legality of removal in substance attacked the deportation order long after the permitted window, contrary to the principles emphasised in XX v. Minister for Justice [2019] IESC 59.
  2. No qualifying EU-law residence: the EU residence card was revoked ab initio, and the temporary permissions were not Directive-derived rights.
  3. Fraud/abuse defeats Chenchooliah reliance: in line with Yaqub v. Minister for Justice [2024] IECA 166 and the abuse-of-rights reasoning also reflected in F.A.Y. (Nigeria) v. Minister for Justice [2019] IEHC 373, the Applicant could not deploy Chenchooliah to constrain removal mechanisms.

3.3 Impact

  • Scheme eligibility: the decision consolidates a clear High Court rule: where the Minister grants time-limited “review” permissions and does not expressly revoke them, those periods count as lawful residence and break the “continuous undocumented” requirement, even if the underlying EU permission is later treated as void ab initio.
  • Administrative clarity vs. legal effect: the Court signalled that imperfect or confusing administrative wording will not, without more, transform discretionary permissions into EU-law residence rights or imply revocation that never occurred.
  • EU-law removal arguments in fraud contexts: the judgment reinforces that Chenchooliah-type protections are unlikely to assist where the claimant’s EU residence status is vitiated by abuse of rights, and it highlights the practical importance of timely challenges to deportation orders.
  • Institutional coherence: by explicitly relying on Worldport comity, the decision discourages repeated attempts to relitigate M.A.-type issues through minor factual distinctions.

4. Complex Concepts Simplified

“Undocumented” for the Scheme
Not a general description of precarious status: it means no valid residence permission for a continuous period. Even a short lawful permission breaks continuity.
Revoked “ab initio”
Treated as invalid “from the outset.” Here, the EU residence card was deemed never valid because it was obtained via abuse of rights (marriage of convenience).
Temporary permissions pending review
Time-limited permissions granted as a matter of Ministerial discretion while a review is considered. They are legally effective unless expressly revoked.
Judicial comity
A High Court judge will generally follow another High Court judge’s decision unless there is a substantial reason to think it is wrong (from Hughes v Worldport Communications Inc. [2005] IEHC 189).
Collateral attack
Trying to undermine an earlier binding decision (e.g., a deportation order) indirectly in later proceedings, instead of challenging it directly and on time.

5. Conclusion

[2026] IEHC 112 confirms a practical and restrictive eligibility rule for the long-term undocumented regularisation Scheme: discretionary temporary permissions granted pending an EU review, if not expressly revoked, are valid permissions and interrupt the “continuous undocumented” period, even where an EU residence card is revoked and deemed invalid from the outset due to a marriage of convenience.

The judgment also underscores two wider themes in immigration litigation: (i) the stabilising force of judicial comity in repetitive Scheme challenges, and (ii) the limited utility of EU-law removal arguments where residence was obtained through abuse of rights and where deportation orders were not timely challenged.