M v Minister for Justice (Approved)

Factual and Procedural Background

This judgment was delivered by Judge Heslin in an application for judicial review brought by the Appellant against the Respondent (the Minister responsible for immigration matters). The Appellant challenged the Respondent's handling of immigration questions affecting the Appellant's entitlement to remain in the State and sought, principally, an order of mandamus compelling the Respondent to consider the Appellant's position under the principles articulated in the CJEU Grand Chamber decision commonly referred to as "Chenchooliah" (C‑94/18). The Appellant also sought, in the alternative, declaratory and interim relief.

Key factual and procedural points (drawn from the documentary and affidavit evidence before the Court) are:

• The Appellant is a third‑country national who arrived in the State in May 2016 and married a UK national in July 2017 (prior to the UK's withdrawal from the EU). The Appellant applied for a residence card under Directive 2004/38/EC (“the Directive”) and the European Communities (Free Movement of Persons) Regulations 2015 (the "2015 Regulations").
• The Appellant's initial application for a residence card was refused by letter dated 6 October 2017 on the basis that the documentation did not satisfy the requirements of the Regulations (including Regulation 7(3) and Regulation 6(3)). A review was sought (Form EU4, 18 October 2017) asserting that the EU spouse was self‑employed and exercising Treaty rights.
• While the review was pending, temporary permissions to remain were granted and extended on several occasions (letters in November 2018 and subsequent extensions through 2020).
• On 23 November 2020 the Respondent's review unit affirmed the 2017 refusal. That letter stated, among other things, that Departmental information indicated the EU spouse was not exercising Treaty rights in 2020, and recorded that the EU spouse "last worked for only 12 weeks during 2019". The Appellant later relied on that statement to argue that Chenchooliah principles should apply to the Appellant's position.
• The Appellant made further administrative approaches including:
  • a further residence card application on 30 December 2020;
  • a request for a discretionary "Stamp 1" (permission to seek employment) by letter dated 11 August 2021;
  • a specific request, repeatedly made (letters of 18 October 2021 and 29 June 2023 and follow up correspondence), for a temporary Stamp 1 "under Chenchooliah".
• By email of 28 September 2023 the Repatriation Division replied to the Appellant's solicitors stating that, "based on the factual matrix currently before the Minister," the Appellant's case "falls to be processed under domestic legislation, namely the Immigration Act 1999," but also advising that, while the Appellant's application under the Regularisation of Long‑Term Undocumented Migrants Scheme ("the Scheme") was pending, the office would not issue an intention to deport under s.3(4) of the 1999 Act and that the situation would be reviewed after the Scheme appeal was completed. The Appellant contended that this email was a binding decision that the Respondent would use domestic law (deportation under the 1999 Act) rather than the Chenchooliah/Directive route.
• Instead of immediately issuing judicial proceedings following a March 2022 letter pressing for a decision on the Chenchooliah‑based Stamp 1, the Appellant applied under the Scheme on 31 March 2022. That Scheme application was refused on 3 April 2023 (on the ground that the Appellant did not satisfy the 4‑year continuous undocumented residence requirement) and an appeal against that refusal was lodged on 11 April 2023.
• The Respondent filed a replying affidavit sworn by Attorney O'Reilly on 11 October 2024 stating, in uncontroverted terms, that the Respondent had not commenced nor decided to commence any procedure to remove the Appellant from the State (whether under the Directive or the Immigration Act 1999), that no decision had been reached about whether the Appellant comes within Chenchooliah, and that the 28 September 2023 email did not bind the Respondent to deport under the 1999 Act and no steps had been taken to remove the Appellant.
• At the ex parte (leave) stage the Court (Judge Hyland) granted leave only to seek reliefs limited to certain remedies (including mandamus and declaratory/interim relief) but did not grant leave to seek certiorari quashing any decision. The hearing before Judge Heslin followed and judgment was delivered on 12 September 2025.

Legal Issues Presented

1. Whether, on the facts before the Court, the Respondent had already decided to remove the Appellant from the State pursuant to domestic law (the Immigration Act 1999) rather than under the legal regime established by Directive 2004/38/EC as interpreted in Chenchooliah.
2. Whether the Appellant was entitled to an order of mandamus compelling the Respondent to treat the Appellant's case as falling within the ambit of the Chenchooliah judgment.
3. Whether the Appellant's claim was premature — that is, whether judicial review was being sought in advance of any relevant decision or proposal to remove the Appellant (a "pre‑emptive attack").
4. Whether, as an alternative to mandamus, declaratory or injunctive relief could properly be granted to constrain the Respondent's future exercise of executive discretion in a manner that would effectively prescribe the procedure to be followed in any future removal decision.
5. Whether principles of separation of powers precluded the Court from directing the manner in which the Respondent should exercise executive power in the absence of an unlawful decision or a duty to decide.

Arguments of the Parties

Appellant's Arguments

• The Appellant sought an order of mandamus compelling the Respondent to consider the Appellant's case as one governed by the Chenchooliah principles (i.e. requiring that any expulsion decision comply with the Directive rather than domestic law).
• The Appellant argued that, by virtue of prior correspondence (notably the Respondent's 23 November 2020 letter which recorded that the EU spouse had worked in 2017 and for 12 weeks in 2019), the Appellant falls within the parameters of Chenchooliah.
• The Appellant contended that the 28 September 2023 email from the Repatriation Division amounted to an express decision that the Appellant's case would be processed under the Immigration Act 1999 (deportation) rather than under Chenchooliah, and that this constituted a firm procedural choice which should be reviewed and corrected by the Court.
• The Appellant urged that, unless restrained, the Respondent might adopt a method of removal (deportation under the 1999 Act) that would be more difficult to resist than a removal processed under the Directive/Chenchooliah framework.

Respondent's Arguments

• The Respondent relied on the uncontroverted affidavit evidence (Attorney O'Reilly) that no decision to remove the Appellant had been taken, no procedure to remove had been commenced and that no decision had been made whether the Appellant falls within Chenchooliah.
• The Respondent submitted that the 28 September 2023 email did not constitute a final or binding decision and was expressly caveated as being based on the factual matrix then before the Minister and subject to future review once the Scheme appeal had been determined.
• The Respondent argued that mandamus is inappropriate because there was no legally‑imposed duty to make a decision of the kind the Appellant sought to compel (the Respondent had not failed or unreasonably delayed to perform such a duty).
• The Respondent submitted that the claim was premature (a pre‑emptive attack): judicial review of a mere proposal or of an anticipated decision is only permitted in very limited circumstances (for example, where the decision‑maker lacks jurisdiction), and no proposal or decision had arisen here.
• The Respondent emphasised separation of powers concerns and relied on authorities to the effect that the Court should not prescribe to the Executive how to exercise its statutory powers or add a new procedural layer upstream of the existing statutory process.
• The Respondent pointed to available alternative remedies (representations under s.3(4) of the Immigration Act 1999, challenge to any deportation proposal, challenge to any deportation order and applications for revocation), which the Appellant could pursue if and when a deportation proposal or decision materialised.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court's reasoning proceeded in a structured way, applying established judicial‑review principles to the specific factual matrix:

1. Nature of the relief sought: The Appellant had leave to seek primarily an order of mandamus compelling the Respondent to consider the Appellant's case as one falling within the ambit of Chenchooliah. The Court observed that mandamus is an order compelling performance of a legally imposed duty (typically used where a decision has been unlawfully delayed or refused). The Court concluded that this was not such a case because there was no duty in the sense of a decision the Respondent had failed or unreasonably delayed to take.
2. Meaning and limits of Chenchooliah: The Court reviewed Chenchooliah, noting that the CJEU held domestic law cannot be used to remove a person who has acquired rights under the Directive unless the current situation falls outside the Directive's scope. Chenchooliah concerns a decision to expel and requires that such a decision (where it exists) comply with the Directive's safeguards (Article 15 and Chapters VI/Articles 27–31).
3. Factual distinction from Chenchooliah: The Court emphasised a critical factual distinction: in Chenchooliah there existed a decision to proceed with deportation (including a formal proposal under s.3 of the Immigration Act 1999). In the present case there was no equivalent decisional act. The Respondent had not:
   • decided that the Appellant should be removed from the State;
   • decided to commence any procedure to remove the Appellant;
   • commenced any procedure to remove the Appellant;
   • refused to consider the Appellant's case under Chenchooliah; or
   • reached any decision whether any potential removal should be sought under Chenchooliah principles or domestic law.
   These factual findings relied on the uncontroverted affidavit evidence of Attorney O'Reilly, which the Appellant did not challenge by cross‑examination.
4. Characterisation of the 28 September 2023 email: The Court read the 28 September 2023 email objectively and in context and concluded it did not constitute a final or binding decision that the Respondent would proceed to remove the Appellant under the Immigration Act 1999. The email was expressly framed as an update, based on the factual matrix then before the Minister and subject to review once the Scheme appeal concluded; it also stated (expressly) that the office would not issue an intention to deport while the Scheme appeal was pending. The Court therefore rejected the Appellant's argument that the email represented a final choice of "the 1999 Act road" over Chenchooliah.
5. Reliance on uncontroverted affidavit evidence: The affidavit of Attorney O'Reilly, sworn on 11 October 2024, was accepted as uncontroverted. It explicitly averred that no decision to remove the Appellant had been taken, that no steps had been taken to remove the Appellant, and that no decision had been reached whether the Appellant falls within the parameters of Chenchooliah. The Court treated those averments as determinative of the primary factual dispute.
6. Prematurity and established jurisprudence: The Court applied the authorities (notably Damache and Leng) which hold that judicial review of a mere proposal (or, a fortiori, of a anticipated future decision) is generally premature and only permissible in narrow circumstances (for example, where the decision‑maker lacks jurisdiction). Because there was no decision, and not even a formal proposal, the Court concluded the present application was a pre‑emptive attack and premature. The Court cautioned that permitting such a pre‑emptive challenge would conflict with the limits on judicial review described in those authorities.
7. Separation of powers concerns: The Court emphasised that the Appellant was effectively seeking to prescribe the process by which the Respondent must determine a future question and to direct the Executive's exercise of statutory discretion. Relying on T.D. v. Minister for Education and the reasoning in A.B., the Court concluded that it would be inappropriate — and would offend separation of powers — to grant relief that had the practical effect of binding the hands of the Minister as to how a potential future removal decision should be taken.
8. Alternative remedies: The Court rehearsed the alternative statutory remedies available to the Appellant if and when a deportation proposal or order were to issue (including the right to make representations under s.3(4) of the Immigration Act 1999, to challenge any s.3(3) proposal for want of jurisdiction, to challenge a deportation order, to apply for revocation, and to pursue judicial review at the appropriate time). The Court found the Appellant had not established that those remedies would be ineffective to vindicate the Appellant's asserted rights.
9. Conclusion of reasoning: Taking the uncontroverted evidence and the established principles together, the Court concluded that the application sought an impermissible pre‑emptive exercise of judicial power. There was no present decision to review and no basis to compel the Respondent, at this stage, to adopt the Chenchooliah route in preference to domestic law; accordingly the Appellant was not entitled to the relief sought.

Holding and Implications

Final Ruling: The Court held that the Appellant was not entitled to any of the relief sought and the claim was dismissed.

Direct consequences and practical implications (as stated in the judgment):

• The Appellant obtains no order compelling the Respondent to decide in advance that any future removal would be governed by Chenchooliah principles.
• The Court emphasised that no decision had been made by the Respondent to remove the Appellant, and therefore no declaratory or mandamus relief was appropriate at this pre‑decisional stage.
• The Court highlighted separation of powers limits: permitting the relief sought would have required the Court to prescribe executive procedure and outcomes in advance, which is impermissible.
• The Appellant retains available alternative remedies if and when the Respondent makes a deportation proposal or order (representations, challenge to any proposal, challenge to any deportation order, application for revocation etc.). The Court found those remedies were adequate and not shown to be ineffective.
• The Court directed that the parties should confer about the precise form of order, including costs; if agreement is reached a draft order should be submitted. If not, the parties may file short written submissions in the Court's Central Office by no later than 4:00pm on Friday 17 October (as directed), and the matter was to be listed at 10:30am on Friday 24 October for any dispute concerning costs (all directions as set out in the judgment).

No new legal principle was created by this judgment beyond the application of settled doctrines (prematurity of judicial review of anticipated decisions, the limits of mandamus, and separation of powers). The decision's immediate effect is to dismiss the Appellant's application and to leave the Appellant to available statutory and judicial remedies if a concrete deportation proposal or decision is made in the future.