Summary of High Court Judgment (Anonymized)

Factual and Procedural Background

The Plaintiff sought judicial review of a review decision of the Defendant dated 21 November 2023 which affirmed an earlier decision of 14 April 2023 refusing the Plaintiff permission to remain under the Regularisation of Long-Term Undocumented Migrant Scheme 2022 ("the Scheme"). The refusal under the Scheme relied on a finding that the Plaintiff had not been undocumented for the minimum period required because the Plaintiff had been granted temporary Stamp 4 permissions between 6 August 2020 and 18 February 2022.

Chronology (as provided in the opinion):

• The Plaintiff arrived in the State on student permission in September 2013 and married an EU citizen in August 2014.
• The Plaintiff applied for a residence card under the EU free-movement regime in October 2014 and was initially granted a temporary Stamp 4 pending determination.
• A substantive residence card was issued on review on 16 October 2015 for five years, but the Defendant later (22 June 2019) concluded the marriage was a marriage of convenience and deemed earlier permissions invalid.
• The Plaintiff requested review of that finding; temporary Stamp 4 permissions were granted pending the outcome of the review (permissions dated 6 August 2020 to 10 May 2021 and extended 27 May 2021 to 18 February 2022).
• On 29 March 2022 the Defendant upheld the finding that the marriage was one of convenience and revoked the residence card and permissions held between 16 October 2015 and 22 June 2019.
• The Plaintiff applied under the Scheme on 22 April 2022; the application was refused on 14 April 2023 on the basis that the Plaintiff did not meet the Scheme's undocumented-residence requirement, and that refusal was affirmed on review on 21 November 2023.

The Plaintiff's proceedings were considered alongside other similar cases. One such case was identified as a test case (referred to in the opinion as "MA"), and judgment in that test case was delivered prior to the present decision.

Legal Issues Presented

1. Whether the Plaintiff was eligible under the Scheme given the existence of temporary Stamp 4 permissions between 2020 and 2022 (i.e., whether those permissions meant the Plaintiff was not "undocumented" for the requisite period).
2. Whether temporary permissions granted pending a review proceeded from entitlement under EU free-movement rights (ancillary to an EU residence card) or were discrete, discretionary permissions granted by the Defendant.
3. Whether retrospective invalidation/revocation of a residence card under Regulation 27(1) of the 2015 Regulations and Article 35 of Directive 2004/38/EEC operates to invalidate ancillary or subsequently granted temporary permissions.
4. Whether there is any right to remain in the State pending a review under the 2015 Regulations.
5. Whether the Defendant failed to give adequate reasons for granting the temporary permissions and whether such alleged lack of reasons renders the Scheme decision unlawful or warrants a declaration.
6. Whether the Defendant treated the Plaintiff differently from similarly situated applicants (i.e., failure to treat like cases alike).
7. Whether the present case should depart from or follow the reasoning in the identified test case and other cited authorities (principle of judicial comity).

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff sought to distinguish his circumstances from those in the test case (referred to in the opinion) and argued that additional matters in his case made the test case inapplicable.
• The Plaintiff relied on earlier decisions (including a judgment of "Judge Cooke") to argue that acknowledgement of an application legitimises presence pending a decision and that temporary permissions ought to be treated as linked to the underlying EU entitlement.
• The Plaintiff argued that the Minister failed to plead or explain the legal basis for the grant of the temporary Stamp 4 permissions and that the absence of reasons for granting those permissions rendered the Scheme decision unlawful and opaque.
• The Plaintiff asserted unequal treatment, contending that other applicants with findings of marriage of convenience nonetheless received permission under the Scheme while he did not.
• The Plaintiff sought a declaration that retrospective invalidation of the 2015 residence card should extend to any ancillary permissions granted on the same basis.

Defendant's Arguments

• The Defendant relied on the absence of any right to remain in the State pending a review under the 2015 Regulations and on authority supporting that proposition.
• The Defendant maintained that the temporary permissions granted in 2020–2022 were discretionary, stand-alone permissions linked to the review process rather than to any entitlement under EU treaty rights.
• The Defendant contended that the review decision of 29 March 2022 revoked only the residence card and permissions between 16 October 2015 and 22 June 2019 and did not revoke the subsequent temporary permissions because those permissions were not addressed in that decision.
• The Defendant argued the Plaintiff's solicitor had sought and accepted discretionary temporary permissions and therefore the Plaintiff cannot now complain that the basis was unclear.
• The Defendant relied on the test case and other authority, asking the court to follow established reasoning dealing with similar facts.

Table of Precedents Cited

Court's Reasoning and Analysis

The court proceeded in a stepwise fashion:

1. The court set out the factual history and emphasised that the review decision of 29 March 2022 expressly referred to revocation of the residence card and permissions between 16 October 2015 and 22 June 2019. The review decision did not mention the temporary permissions granted in 2020–2022.
2. The court considered the legal character of the temporary Stamp 4 permissions granted in 2020 and 2021. On the authorities (including the test case), it concluded those permissions were stand-alone, discretionary permissions granted in the exercise of Ministerial discretion pending the outcome of a review rather than as acknowledgements of an entitlement under EU treaty rights or as ancillary to the earlier residence card.
3. The court examined whether there is any right to remain in the State pending a Regulation 25 review. It relied on the Article 40 authority and subsequent appeal ruling mentioned in the opinion to conclude that no such right exists. That conclusion undermined the Plaintiff's reliance on the earlier judgment of "Judge Cooke" as establishing a general right to remain during review in the present context.
4. The court addressed the Plaintiff's contention that retrospective invalidation of the 2015 residence card should extend to any ancillary permissions. Relying on appellate and High Court authority, the court concluded the Directive does not permit automatic or retrospective revocation of rights absent appropriate procedural safeguards, and there was no basis to extend revocation beyond the specific permissions identified in the review decision.
5. The court considered the Plaintiff's complaint that the Defendant failed to give reasons for the grant of the temporary permissions. It reviewed the correspondence between the Plaintiff's solicitors and the Defendant: the solicitors specifically requested temporary permission pending review and the Defendant granted such permissions with express statements that receipt of the Stamp 4 was not an acknowledgement of entitlement under EU treaty rights. The court found that the solicitors were aware the permissions were discretionary and that the Plaintiff had not sought clarification at the time; accordingly the Plaintiff had not discharged any burden to show illegality or lack of reasons that would render the Scheme decision vulnerable in a way that would afford useful relief.
6. On the allegation of unequal treatment, the court found a material difference between the Plaintiff and other applicants who had not sought review: those other applicants had not sought the additional ministerial indulgence of temporary permissions pending review. The court concluded there was no established basis to find disparate treatment.
7. The court considered the test case decided by "Judge Heslin" and, invoking judicial comity, adopted the reasoning in that decision as applicable to the present facts—particularly paragraphs identifying the stand-alone nature of the temporary review permissions and that they were granted because of review (not marriage) and were not expressly revoked.

The court therefore combined factual analysis (what was actually revoked in the review decision and what permissions were not mentioned) with the legal principle that the Defendant may exercise discretion to grant temporary permissions pending review and that revocation or retrospective invalidation must be the subject of a clear and express decision in order to apply to later permissions.

Holding and Implications

Holding: The court REFUSED the relief sought by the Plaintiff (the application to quash the Scheme review decision dated 21 November 2023).

Implications:

• The Scheme review decision of 21 November 2023 stands and the Plaintiff remains ineligible under the Scheme on the ground relied upon by the Defendant (the existence of temporary Stamp 4 permissions during the relevant period).
• The court held that the temporary permissions granted in 2020–2022 were discretionary, stand-alone review permissions and were not revoked by the 29 March 2022 review decision because they were not the subject of that decision.
• The court declined to declare that retrospective invalidation of the 2015 residence card automatically invalidated subsequently granted temporary permissions; no broader novel legal principle was created beyond the application of existing authorities to the facts before the court.
• The court indicated a provisional view that the Defendant is entitled to costs; parties were permitted to make written submissions on costs within ten days, with a default order to be made if no submissions are filed.

Outcome

The Plaintiff's application for relief was dismissed. The Defendant was provisionally entitled to costs, with a short period allowed for submissions on costs by the parties.

Judgment delivered by Judge O'Regan on 30 October 2025. This summary is prepared strictly from the content of the provided opinion and has been fully anonymized in accordance with the instructions provided.