- Bookmark
- Share
- CaseIQ
F.A.Y [Nigeria] v The Minister For Justice [No. 2] (Approved)
Summary of Judgment — High Court
Factual and Procedural Background
The Plaintiff, a national of Nigeria born in 1982, arrived in The State on 23 October 2009 and made an asylum application which was refused on 17 November 2009. The Plaintiff notified an intention to marry an EU national in January 2010 and married on 28 January 2011. The Plaintiff obtained a five-year residence card (Stamp 4 EUFAM) on 12 October 2011 which expired on 12 October 2016. The Plaintiff applied for a further residence card in 2016; that application was refused on 14 April 2017. A review was sought and, during the review process, the Plaintiff was granted temporary permissions to reside from 12 July 2017 to 2 March 2018 and from 4 May 2018 to 4 August 2018. On 26 July 2018 the Defendant notified refusal of the review on the basis of findings of fraud/abuse (a marriage of convenience). On 2 November 2018 the Defendant clarified that the original residence card was "deemed to be invalid from the outset" and revoked under the relevant regulations. Judicial review of the July 2018 decision was dismissed by the High Court in 2019. A deportation order was issued on 17 February 2020 and notified on 21 August 2020.
On 31 January 2022 The State opened a Scheme for long-term undocumented residents requiring continuous undocumented residence for the four-year period 31 January 2018 to 31 January 2022. The Plaintiff applied to the Scheme in February 2022; the application was refused and, after review and interlocutory proceedings (including settlement and reconsideration), the Defendant issued the Impugned Decision on 30 August 2024 refusing the Plaintiff permission under the Scheme. The Plaintiff obtained leave for judicial review of that Impugned Decision on 13 December 2024. Judge Cahill delivered judgment dismissing the Plaintiff's claim on 25 February 2026.
Legal Issues Presented
- Whether, at any time during the Relevant Period (31 January 2018–31 January 2022), the Plaintiff had a right to reside in The State that was not revoked and invalidated ab initio, such that the Plaintiff was ineligible for the Scheme.
- Whether the temporary permissions granted during the review process were valid independent permissions (discretionary and not revoked) or were invalidated by the revocation of the original residence card.
- Alternative EU law issue: if the Plaintiff enjoyed periods of permission pursuant to Directive 2004/38/EC, whether the Plaintiff is a former beneficiary of the Directive and thus cannot be removed under domestic law but only under Article 15 of Directive 2004/38/EC (the "Alternative EU Ground").
- Preliminary procedural question whether the Alternative EU Ground constitutes an impermissible collateral attack on the earlier Deportation Order.
Arguments of the Parties
Plaintiff's Arguments
- The original residence card was void ab initio and therefore any subsequent temporary permissions, which were granted solely in connection with review of that card, cannot be independently valid; the Plaintiff therefore meets the Scheme criteria of continuous undocumented residence.
- Alternatively, if the Plaintiff was lawfully resident pursuant to EU law during parts of the Relevant Period, then the Plaintiff is a former beneficiary under Directive 2004/38/EC and cannot be removed under national law (relying on Chenchooliah).
- The correspondence from the Defendant (notably the 26 July 2018 letter) is inconsistent and ambiguous and should be read as supporting the Plaintiff's case.
Defendant's Arguments
- The original residence card was revoked but the Temporary Permissions were granted in the exercise of the Defendant's discretion, independently of the revocation decision, and were not revoked; they expired by lapse and therefore the Plaintiff was documented for the relevant periods and is ineligible for the Scheme.
- The Alternative EU Ground is a collateral attack on the Deportation Order and time-barred; any challenge to the deportation should have been brought under the statutory mechanism and within time limits.
- The Defendant relies on High Court authorities (including M.A. and M.S.B.) and the principle of judicial comity to support the approach that temporary review permissions are discretionary, not rights under the Regulations or Directive, and do not fall within Chenchooliah where fraud/abuse is present (relying also on Yaqub).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Appellant (A Minor) v. Minister for Foreign Affairs and Trade [2022] IESC 25 | Revocation of status should ordinarily be prospective; disfavours retrospective nullification of previously acquired rights. | Distinguished on facts; cited to underline caution against automatic retrospective invalidation but not determinative here. |
| Case B v. Minister for Justice [2023] IEHC 1 (A.K.S.) | Regulation 27(1) confers a discretion to revoke; revocation is not mandatory and must be exercised proportionately; cannot nullify acquired citizenship rights. | Used to show revocation is discretionary and that implications of revocation depend on context; Court noted A.K.S. concerned challenge to revocation, which is not before this Court here. |
| Case C v. Minister for Justice [2025] IEHC 135 (M.A.) | Distinction between a residence card void ab initio and temporary review permissions which are discretionary; temporary permissions were not revoked and expired by lapse. | Followed as an important test case; Court applied M.A. to conclude the Temporary Permissions were discrete discretionary permissions that expired and therefore rendered the Plaintiff documented for parts of the Relevant Period. |
| Case D v. Minister for Justice [2025] IEHC 566 (M.S.B.) | Affirms M.A.'s analysis that temporary permissions pending review are discretionary and not automatically invalidated by revocation of a residence card. | Adopted and relied upon to reinforce that M.A. is applicable and binding by judicial comity. |
| Hughes v Worldport Communications Inc. [2005] IEHC 189 (Worldport) | Principle of judicial comity: follow a decision of another judge of the same court unless substantial reasons to think it is wrong. | Applied to justify following M.A. and M.S.B. in this Court's analysis. |
| Plaintiff v. Defendant [2019] IEHC 373 (earlier judgment in these proceedings) | Judgment upholding the finding that the marriage could be a marriage of convenience; supporting revocation/refusal decisions. | Cited to note that the challenge to the finding of marriage of convenience had already been dismissed on judicial review. |
| Case F v. Minister for Justice and Equality (Case C-9411 8), Judgment of the Court (Grand Chamber) of 10 September 2019 (Chenchooliah) | Where a person previously held rights of residence under the Directive but later ceased to be a beneficiary, removal may be governed by Article 15 of Directive 2004/38/EC rather than national removal procedures. | Considered on the Alternative EU Ground; Court held Chenchooliah inapplicable because the Plaintiff's EU-based rights were found to have been obtained by abuse/fraud and revoked ab initio (and collateral-attack/time-bar issues applied). |
| Case G v. Minister for Justice [2023] IEHC 642 (S.M.A.) | Authority concerning challenges to findings of marriage of convenience (contextual reference). | Referenced; Court held reliance on similar authorities was misplaced where revocation findings were unchallenged. |
| Case H v. Minister for Justice [2020] 3 IR 532 (XX v. Minister for Justice) | Emphasises time limits and statutory mechanisms for challenging immigration/asylum decisions and the impermissibility of collateral attacks outside those procedures. | Applied to reject the Alternative EU Ground as an impermissible collateral attack on the Deportation Order (time-bar/appropriate procedure issue). |
| Case I v. Minister for Justice [2024] IECA 166 (Yaqub) | Indicates Chenchooliah is not applicable where rights were obtained by fraud; supports position that fraud prevents reliance on Chenchooliah. | Relied upon to support the rejection of the Plaintiff's Chenchooliah-based argument. |
Court's Reasoning and Analysis
Judge Cahill analysed (i) the relevant correspondence (26 July 2018, 2 November 2018, 18 April 2023, 31 October 2023, 30 August 2024) and (ii) the applicable statutory and judicial authorities. The Court made factual findings that the Temporary Permissions (12 July 2017–2 March 2018 and 4 May 2018–4 August 2018) were granted by the Defendant in the exercise of discretion pending review and were not revoked; they expired by lapse. The 26 July 2018 letter upheld the refusal of the residence card but confirmed the then-current Temporary Permission would expire on its fixed date; the 2 November 2018 letter clarified that the original 2011 Residence Card was revoked and deemed invalid from the outset. The Court found no adequate basis to read the correspondence as having revoked the Temporary Permissions or as recognising EU treaty rights for the Temporary Permissions.
Legally, the Court followed M.A. and M.S.B., applying the principle of judicial comity (Worldport) and concluded those authorities are applicable and not distinguishable. The Court rejected the Plaintiff's contention that revocation of the original residence card necessarily invalidated the Temporary Permissions ab initio, noting A.K.S. and U.M. caution against automatic retrospective nullification and emphasise that revocation is a discretionary, context-dependent power. The Court therefore held the Defendant was entitled to treat the Temporary Permissions as discrete discretionary permissions which rendered the Plaintiff documented for parts of the Relevant Period, excluding the Plaintiff from the Scheme.
On the Alternative EU Ground, the Court found the argument to be an impermissible collateral attack on the Deportation Order (time-bar and statutory mechanisms under the 2000 Act) and in any event that the Plaintiff's EU-based rights had been revoked ab initio on the basis of abuse/fraud; the Temporary Permissions were discretionary and not rights under Directive 2004/38/EC. The Court further held Chenchooliah did not assist the Plaintiff in light of the fraud finding and authorities such as Yaqub.
Holding and Implications
DISMISSED
Holding: The Plaintiff's claim for relief by judicial review of the Impugned Decision was dismissed. The Court held that the Temporary Permissions were discretionary, were not revoked, expired by lapse, and therefore the Plaintiff did not satisfy the Scheme's requirement of continuous undocumented residence from 31 January 2018 to 31 January 2022. The Alternative EU Ground was rejected as an impermissible collateral attack and on merits because the Plaintiff's EU rights had been revoked ab initio due to abuse/fraud.
Implications: The direct consequence is that the Plaintiff remains ineligible for the Regularisation Scheme and the Impugned Decision is upheld. The judgment applies existing High Court authorities (M.A., M.S.B.) and judicial comity rather than establishing a new precedent. The Court indicated a provisional view that costs should be awarded to the Defendant and invited short written submissions on costs, to be addressed at a listed date.
Alert