I & Anor v Minister for Justice (Approved)

Factual and Procedural Background

This judicial review application concerns the refusal by the Minister for Justice ("the Minister") of a Residence Card application made by the First Named Applicant, a third country national, on the basis of derived rights of free movement and residence as a family member of an EU citizen (the Second Named Applicant) residing in Ireland. The Minister and officials were not satisfied that the EU citizen was exercising her Treaty Rights, specifically in the context of employment, and thus determined that no derived right to reside or move freely accrued to the First Named Applicant. The Minister refused the Residence Card application initially on 29 August 2019 and upheld this refusal on review on 5 December 2022. The judicial review challenges the lawfulness of the reviewed decision.

The First Named Applicant, a Nigerian national, and the Second Named Applicant, a British national, were married in Malaysia in February 2012 and have lived in Ireland since around May 2018. The First Named Applicant applied for a Residence Card on 15 October 2018, relying on the Second Named Applicant’s status as an EU citizen exercising Treaty rights pre-Brexit. The Minister refused the application citing concerns about the authenticity of documents and the genuineness of the marriage.

Following a ministerial notice of intention to refuse dated 15 July 2019, the Minister raised multiple concerns including alleged false or misleading documentation, contradictions in marital status declarations, lack of evidence of employment by the EU citizen spouse, and inconsistencies regarding tenancy documentation. The First Named Applicant did not make representations in response. The application was formally refused on 29 August 2019. A review was sought by the First Named Applicant, and the reviewed decision of 5 December 2022 partially set aside the finding that the marriage was one of convenience but upheld the refusal on grounds that the Second Named Applicant was not exercising her Treaty Rights through employment or other qualifying criteria, and that false or misleading information had been submitted, constituting an abuse of rights.

The Minister’s decision was based on documentary evidence, including information from the Department of Employment Affairs and Social Protection (DEASP) and the Companies Registration Office, which contradicted the claimed employment of the Second Named Applicant. The Minister also considered medical evidence and information regarding involuntary unemployment and sufficient resources but remained unsatisfied that the Treaty Rights were being exercised.

Leave to apply for judicial review was granted by the High Court and the matter proceeded to hearing. The court also reviewed relevant procedural jurisprudence concerning the scope and particularization of grounds in judicial review applications.

Legal Issues Presented

1. Whether the Minister lawfully refused the First Named Applicant’s Residence Card application on the basis that the Second Named Applicant was not exercising her EU Treaty Rights in Ireland.
2. Whether the Minister properly applied the provisions of the European Communities (Free Movement of Persons) Regulations 2015, particularly Regulation 27 concerning abuse of rights and Regulation 28 concerning marriages of convenience.
3. Whether the Minister’s decision was procedurally fair, including the adequacy of reasons provided and the opportunity to respond to allegations of false or misleading documentation.
4. Whether the Minister properly considered the Second Named Applicant’s changed circumstances, including involuntary unemployment and possession of sufficient resources, in assessing the derived right of residence.
5. Whether the judicial review application was confined to the grounds as granted and properly particularised in accordance with procedural rules and jurisprudence.

Arguments of the Parties

Applicants' Arguments

• There has been no objective finding that the documents relied upon by the First Named Applicant were false or forgeries.
• The Minister’s conclusion that the documentation was false or misleading is circular, relying on a negative finding regarding the Second Named Applicant’s employment without first objectively verifying the authenticity of the documents.
• The Minister failed to contact the alleged employer despite having contact details, contrasting with the contact made with the landlord, undermining the basis for rejecting the employment evidence.
• The Minister failed to properly consider the Second Named Applicant’s involuntary unemployment and possession of sufficient resources as grounds for exercising Treaty Rights.
• The Minister’s decision contains boilerplate language and does not adequately explain the reasons for refusal, particularly in relation to the sufficiency of resources and unemployment status.
• The Minister failed to provide an interview or oral hearing, although this argument was accepted as rejected based on precedent.

Respondent's Arguments

• The Minister and officials thoroughly considered all relevant information and documentation at each stage, including the initial refusal and the reviewed decision.
• The Minister was entitled to make inquiries regarding the employment status and company registration, and to rely on information from State bodies such as DEASP and the Companies Registration Office.
• The Applicants had multiple opportunities to respond to concerns but failed to provide further substantive evidence or clarification.
• The Minister’s decision is distinguishable from precedents cited by the Applicants, as in this case specific evidence was identified that the documentation was false or misleading.
• The Minister acted proportionately and lawfully in refusing the Residence Card application on grounds of abuse of rights under Regulation 27 of the 2015 Regulations.
• The Minister properly considered the changed circumstances of involuntary unemployment and possession of sufficient resources, as reflected in the review application and decision.
• The procedural requirements for judicial review were observed, and the scope of the review was confined to the grounds granted.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the Minister’s decision-making process in detail, focusing on the application of the 2015 Regulations concerning derived rights of residence for family members of EU citizens. The court noted that the Minister initially found the marriage to be one of convenience on the basis of contradictory declarations and false or misleading documentation; however, this finding was overturned on review due to insufficient evidence.

Regarding the core issue of whether the Second Named Applicant was exercising Treaty Rights through employment, the court observed that the Minister relied on information from official State bodies (DEASP and Companies Registration Office) which contradicted the employment evidence submitted. The Minister found no record of employment payments or company registration, and the purported employment was not reflected in State records. This led to the conclusion that the documentation was false or misleading and amounted to an abuse of rights under Regulation 27.

The court addressed the Applicants’ argument that the Minister’s reasoning was circular, emphasizing that the Minister’s decision was based on objective evidence and the absence of corroborating State records, not merely on disbelief. The failure to contact the alleged employer was noted but did not invalidate the overall assessment.

The court further considered the Minister’s recognition of the changed circumstances of involuntary unemployment and possession of sufficient resources. It found that the Minister had properly considered these factors, supported by medical evidence and other documentation, and was entitled to conclude that the Treaty Rights were not being exercised.

Procedurally, the court underscored the importance of confining the judicial review to the granted grounds, which were clearly particularised. The court referred extensively to established jurisprudence requiring precise grounds and limiting the scope of review accordingly.

Ultimately, the court found no legal or procedural error in the Minister’s decision to refuse the Residence Card application on the basis of abuse of rights and failure to demonstrate exercise of Treaty Rights by the EU citizen spouse.

Holding and Implications

DISMISSED

The court refused the First Named Applicant’s application for judicial review. The Minister’s decision to refuse the Residence Card application was upheld as lawful and proportionate. The decision confirms that where an applicant submits documentation found to be false or misleading, and where the EU citizen family member is not exercising Treaty Rights as required, an application for derived residence rights may be refused on grounds of abuse of rights under the 2015 Regulations.

No new precedent was established. The ruling reinforces the procedural and substantive standards applicable to applications for derived rights of residence and the necessity for applicants to provide genuine and verifiable evidence of Treaty Rights exercise.