Court dismisses appeal against visa refusal, upholding Minister's use of DEASP data to verify employment claims.

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THE COURT OF APPEAL

CIVIL

Neutral Citation Number: [2025] IECA 230

Court of Appeal Record No.: 2025 114

High Court Record No.: 2023/551 JR

Whelan J. Hyland J. Collins J.

BETWEEN/

SHAMAS KHAN

APPLICANT/ APPELLANT

- AND -

THE MINISTER FOR JUSTICE

RESPONDENT/ RESPONDENT

JUDGMENT of Ms Justice Hyland delivered on the 19th day of November 2025 SUMMARY

1. This is an appeal from a decision of the High Court (O’Donnell J. [2025] IEHC 165), refusing an application to quash decisions of the Minister for Justice (the “Respondent”) rejecting four review applications. The reviews had been submitted in response to decisions refusing visa applications made on behalf of Mr. Khan’s (the “Appellant”) four children who are living in Pakistan. For the reasons detailed below, I uphold the decision of the trial judge.

FACTUAL BACKGROUND

2. The Appellant is a naturalised UK citizen, originally from Pakistan, who currently resides in Ireland. He submitted applications for EU Treaty Rights (“EUTR”) visas on behalf of his four children, who remain in Pakistan and are nationals of a third country. These applications were made under the process whereby third country nationals may claim entitlements as “qualifying family members”, as defined in the European Communities (Free Movement of Persons) Regulations 2015 (S.I. 548/2015) (“the 2015 Regulations”), which transposed Directive 2004/38/EC of the European Parliament and of the Council of

29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJEU L 158, p. 77, “Citizens’ Directive”) on the right of citizens of the European Union and their family members to move and reside freely within the territory of the Member States. The applications were refused both at first instance and on appeal.

3. According to his amended Statement of Grounds, the Appellant was born in Pakistan and has been married three times. His first marriage, which ended in divorce in 2010, produced the four children who are the subject of the visa applications. He later married a British citizen and moved to the UK in 2011, becoming a naturalised UK citizen in 2018.

Following their divorce in 2017, the Appellant relocated to Ireland in 2020 and married his third spouse, a Pakistani national, later that year.

4. The four decisions under review in these proceedings (one in respect of each child) relate to the third set of visa applications made on behalf of the Appellant’s children. The initial applications, submitted in 2018, were refused in January 2019 on the basis that the Appellant did not genuinely intend to exercise his free movement rights. The subsequent applications made in November 2020 were refused due to issues with identification documents and doubts about the Appellant’s lawful residence. While his spouse’s visa application was approved on appeal, the children’s appeals were rejected in October 2021.

5. The applications which are the subject of these proceedings were submitted on 4 April 2022 and refused in August 2022. Appeals against those refusals were lodged on 2 October 2022 and ultimately rejected by decisions of 28 February 2023 (the “Decisions”). By the within proceedings, the Appellant seeks to quash the Decisions and have the matter remitted back to the Respondent for fresh decisions.

6. A central issue in the Decisions was the failure to prove that the Appellant was genuinely and effectively exercising free movement rights in Ireland, both prior to and after the Brexit deadline of 31 December 2020, as required by the Citizens Directive. The Appellant submitted documents including bank statements, employment letters, payslips, and utility bills. These were found to be insufficient as key documentation and details were missing, such as signed contracts and evidence of continuity of employment. The payslips submitted showed that the Appellant had worked zero hours and received zero pay from his employment from May 2022 to September 2022, just before the appeals were launched. This subsequently led to a search being performed by the Department of Employment Affairs and Social Protection (DEASP) at the request of the Respondent, which found that the Appellant ceased his employment on 18 September 2022 and had had no earnings since May of that year.

7. The Decisions also found that there was no tenancy agreement or RTB registration submitted, and the bills provided did not sufficiently demonstrate habitual residence. Discrepancies in rent amounts and the absence of rental receipts or bank withdrawals further undermined the credibility of the claimed residence. Hence, the Respondent was not satisfied that the Appellant was, or continued to be, habitually resident at this address or in the State.

8. The visa appeal applications also referenced a prior successful visa application for the Appellant’s spouse, but the Decisions clarified that each application is processed individually on its own merit, and it is for an applicant to ensure that they submit all relevant supporting documentation with each and every application.

CHRONOLOGY OF RELEVANT EVENTS

2018: The first visa applications were submitted on behalf of the Appellant’s children.

31 January 2019: The first visa applications in respect of the children were refused.

November 2020: The second visa applications were submitted on behalf of the children. The first visa application was submitted in respect of the Appellant’s spouse.

15 January 2021: The children’s second visa applications and the Appellant’s spouse’s first visa application were refused.

12 March 2021: Appeals were submitted on behalf of the children and the Appellant’s spouse.

27 September 2021: The Appellant’s spouse’s visa application was approved on appeal.

8 October 2021: The children’s visa appeals were refused.

22 January 2022: The Appellant’s spouse joined the Appellant in the State.

4 April 2022: The children’s third visa applications were submitted.

9 August 2022: The third visa applications on behalf of children were refused.

27 September 2022: The Appellant’s spouse’s residence card was approved.

2 October 2022: The children appealed.

28 February 2023: The children’s visa appeals were refused.

LEGISLATIVE STRUCTURE

9. The trial judge’s articulation of the legislative structure in the High Court judgment is helpful. For ease of reference and in agreement with its substance, I set out the relevant extract below: “11. Following the withdrawal of the United Kingdom from the EU, provision was made for the application of the 2015 Regulations to UK citizens who had exercised their then Treaty rights to reside in the State before the end of the transition period (as defined) and who continued to reside in the State thereafter; see European Union (Withdrawal Agreement) (Citizens’ Rights) Regulations 2020 (S.I. 728/2020). For the purposes of the facts in this case, there was no dispute that the applicant’s situation was to be approached on the basis that he was a Union citizen at the material times.

12. The CJEU has made clear that having regard to the important Treaty rights underpinning the Citizens Directive, “the provisions of that directive cannot be interpreted restrictively, and must not in any event be deprived of their effectiveness”, see Metock & Others Case C-127/08 [2008] ECR I-6241. This case is concerned with right of third country nationals; their rights under the Citizens Directive derive from the exercise of freedom of movement rights of a Union citizen, see Singh C-218/14, EU:C:2015:476. The CJEU has made clear that the concept of a worker for the purposes of Article 45 TFEU does not preclude persons who earn low levels of remuneration, or who only work a small number of hours per week; see for instance Levin, Case 53/81 [1982] ECR 1035, Ruzius-Wilbrink C-102/88, EU:C:1989:630 and Geven, C- 213/05,EU:C:2007:438.

12. Regulation 2(1) in combination with reg. 3(5) of the 2015

Regulations contains a definition of “qualifying family member” which reflects the definition of “family member” in article 2(2) of the Citizens Directive. A qualifying family member of a Union citizen includes a direct descendant of the citizen who is under the age of 21 or who is over the age of 21 years but is a dependant of the citizen. By reg. 4(5), where a qualifying family member who does not have a valid passport or the necessary Irish visa seeks to enter the State the respondent is required to give them “every reasonable opportunity” to obtain the relevant documents. The respondent’s officer may also require a person seeking to enter the State as a qualifying family member to produce documentary evidence of the relationship and dependency.

13. In terms of residency rights, a qualifying family member has a right to reside for more than three months in the State with the Union citizen in question. However, that entitlement is conditional on the Union citizen (from whom the family member derives their entitlement) being entitled to reside in the State for a period longer than 3 months. Under the regulations, a Union citizen who enters the State may reside in the State for longer than 3 months if, inter alia, they are in employment or self-employed in the State or they have sufficient resources for himself and his family not to become an unreasonable burden on the social assistance system of the State. Where a citizen ceases to be in employment or self-employment their entitlement to remain in the State will continue where certain criteria are met, including that they have become involuntarily unemployed and has registered as a job-seeker with the Department of Social Protection.

…

10. Article 5(1) of the Directive provides: “Without prejudice to the provisions on travel documents applicable to national border controls, Member States shall grant Union citizens leave to enter their territory with a valid identity card or passport and shall grant family members who are not nationals of a Member State leave to enter their territory with a valid passport.”

11. The obligation to grant leave to enter to family members who are not Union citizens is qualified by Article 5(2) of the Directive which provides:

“Family members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement. Member States shall grant such persons every facility to obtain the necessary visas. Such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure.”

THE PROCEEDINGS

12. The proceedings were commenced on 23 May 2023. On 13 November 2023, the Appellant was granted leave to apply by way of application for judicial review. As set out in the amended Statement of Grounds, the Appellant sought orders of certiorari quashing the decisions of the Respondent of 23 February 2023 refusing the visa appeals of the Appellant’s four named children.

13. On 17 May 2023, the Appellant swore an affidavit exhibiting a series of documents relating to the visa applications and appeals. These included: visa refusal letters dated 31 January 2019; visa refusal letters dated 15 January 2021; visa appeals dated 12 March 2021; visa refusal letters dated 8 October 2021; visa applications dated 7 April 2022; visa refusal letters dated 9 August 2022; visa appeals dated 2 October 2022; and visa refusal letters dated 28 February 2023. The Appellant’s solicitor swore an affidavit on 16 October 2023, shortly before the application for leave was granted, exhibiting payslips that, according to the Appellant, demonstrated the payslips that had been originally submitted were erroneous. This material was not before the Respondent when the impugned decisions were made, and the trial judge correctly refused to consider it on the basis that the impugned

decision ought to be considered on the basis of the material submitted by the Appellant at the time he made his application, the Court not being permitted to find that it would have come to a different conclusion to the Respondent on the basis of new evidence.

14. The Appellant’s solicitor swore a further affidavit on 15 November 2023 exhibiting the letter from the Department of Justice granting the Appellant’s spouse a residence card. The Respondent filed a statement of opposition on 24 April 2024, in which the legal grounds relied upon by the Appellant were disputed. Judgment was given rejecting the Appellant’s appeal on 21 March 2025 and the order was perfected on 4 April 2025. The Appellant filed a notice of appeal on 2 May 2025, and the appeal was heard on 21 October 2025.

HIGH COURT JUDGMENT

15. The High Court refused the application for judicial review on the basis that the Appellant had not demonstrated any procedural unfairness or irrationality in the Respondent’s

decision-making process. The Court found that the burden of proof was on the Appellant to establish entitlement under the Citizens Directive and the 2015 Regulations, and that he had failed to provide sufficient evidence of continuous employment, habitual residence, and dependency in respect of his children.

16. According to the trial judge, the Respondent was entitled to assess the application based solely on the materials submitted and was not under any obligation to conduct a further investigation or assist the Appellant in identifying discrepancies or missing documents within the applications. The Respondent’s decisions were found to be “firmly rooted in an individual consideration of the information, and they were made on a sufficiently factual basis.” (paragraph 68)

17. The Court rejected the argument that the earlier approval of a visa for the Appellant’s spouse created an obligation to approve the children’s applications, noting that each application must be assessed individually and in its own factual context, and that the decisions were not, in fact, comparable given the different time periods involved.

GROUNDS OF APPEAL

18. The Appellant challenges the High Court’s refusal of judicial review on four principal grounds.

19. First, he argues there is an inconsistency between the refusal of visa applications for his children and the Respondent’s decision to grant a five-year residence card to his spouse on

27 September 2022. The Appellant argues that both applications were based on the Appellant’s status as a “worker” under the Citizens’ Directive and relied on the same employment history. The Appellant submits that the Respondent’s failure to revoke the spouse’s residence card, despite the statutory obligation to do so if the sponsor is no longer a worker, undermines the rationale for refusing the children’s visas.

20. The next ground of appeal relates to the adequacy of the Respondent’s investigation of the Appellant’s employment status. The Appellant claims that the Respondent failed to properly investigate his employment status. Specifically, the Respondent did not follow up on the blank payslips that had been submitted in error, nor did he contact the Appellant’s employer. A further argument was made to the effect that the Respondent erred in the weight it gave the material from the Appellant’s landlord.

21. Separately, the Appellant submits that his right to fair procedures and his right to be heard under EU law was breached when the Respondent relied on information obtained from the DEASP without disclosing same or affording him an opportunity to respond before the visa appeals were refused.

22. Finally, he asserts that the visa refusals were irrational and lacked a solid evidential basis.

INCONSISTENCY ON THE PART OF THE RESPONDENT

23. The Appellant argues that the trial judge erred in failing to address the argument that the Respondent’s refusal to grant visas to his children was inconsistent with the decision to grant a residence card to his spouse under the S.I. No. 728/2020 European Union (Withdrawal Agreement) (Citizens’ Rights) Regulations 2020 (“the 2020 Regulations”). He argues that the residence card, issued on 27 September 2022, necessarily required the Respondent to be satisfied that the Appellant was exercising EU Treaty rights as a worker at that time. On the other hand, in the children’s visa appeal refusals, issued in February 2023, the Respondent concluded that the Appellant had ceased employment in May 2022 and was no longer exercising Treaty rights. The Appellant contends that the Respondent cannot lawfully hold contradictory positions on the same factual issue without explanation, and that this inconsistency undermines the rationality and legality of the decisions, and the trial judge erred in not so finding. He relies upon J.N. v. Minister for Justice [2009] IR 146 in this respect, as well as Mallak v. Minister for Justice [2012] 3 IR 297 in respect of an obligation to give reasons, which he argues is breached by the Respondent’s failure to explain why the applications were treated differently.

24. The Respondent contends that this argument was not raised in the High Court and should not be entertained on appeal, pointing to the Appellant’s amended Statement of Grounds, which framed the inconsistency in terms of the visa granted to the spouse, not the residence card that was later issued to her. Even if it were to be considered, he asserts that each visa application must be assessed individually based on the evidence submitted and the time of

decision.

25. The Respondent further argues that administrative decision-making under the Citizens Directive does not operate on a system of binding precedent, citing Fasakin v. RAT [2005] IEHC 423. The Respondent also relies on the principles set out in J.N., observing that in contrast to court-like procedures and oral hearings, the decision-making process in the context of EUTR visas is one completed solely by administrative decision-makers within the Department on the basis of documents furnished to them by applicants, and that the case law makes it clear that the process is one which may be determined based on the material submitted.

Analysis

26. I have some reservations as to whether the Appellant should be permitted to invoke the grant of a residence card to his spouse, as opposed to the grant of the visa. The pleadings focus upon the visa and, unsurprisingly, the trial judge dealt with that rather than the residence card. However, there is a reference to the residence card in the pleadings and submissions and therefore I will address this argument.

27. The residence card granted to the Appellant’s spouse on 27 September 2022 and the refusal of the children’s visa appeals on 23 February 2023 occurred at materially different points in time. The letter of 27 September 2022 from the Department of Justice granting the residence card refers to the application being submitted on 28 March 2022. On the other hand, the Decisions subject of these proceedings refer inter alia to payslips from May 2022 to September 2022, and place considerable reliance upon same. That material was presumably not considered in the context of the Appellant’s spouse’s application; or certainly no case was made by the Appellant to that effect. The Appellant did not exhibit the application for the residence card or the materials relied upon in that respect.

28. Moreover, the application made by a spouse for a residence card to remain in the State is materially different from the applications made by children seeking entry visas to enter the State. These applications engage different legal frameworks, factual materials, and considerations. In short, the two sets of applications are neither legally nor factually comparable; and therefore, the question of a lack of consistent treatment does not even arise. Consistency in decision-making presupposes that the applications being compared are either identical in substance or sufficiently similar in relevant respects.

29. For the sake of completeness, I note that the trial judge reached a similar conclusion in respect of the Appellant’s spouse’s visa application and those of the Appellant’s children: the applications were decided by reference to a different period of time, and therefore this was not a case where different decisions arose from the same facts and issues (see paragraphs 66 and 67). To the extent that there is a challenge to this aspect of his decision, I am entirely in agreement with his approach.

30. In the circumstances, I reject this ground of appeal.

ALLEGED IRRATIONALITY/INADEQUATE INVESTIGATION

Status of “Worker”

31. The Appellant contends that the Respondent’s conclusion - that he was not a “worker” within the meaning of Article 7 of the Citizens’ Directive - was irrational and failed to consider the full legal context. He submits that he had been in continuous employment in the State for a substantial period prior to May 2022, and that even if there was a temporary cessation or reduction in hours between May and September 2022, this did not automatically result in the loss of his worker status. The Appellant argues that under EU law, particularly Article 7(3) of the Citizens’ Directive, a Union citizen may retain worker status during periods of involuntary unemployment or temporary interruption, provided certain conditions are met. He maintains that the Respondent failed to consider whether he retained that status during the relevant period, and that the decision was based on a rigid interpretation of the Directive.

32. The Appellant relies on I.T. v. The Minister for Justice [2023] IEHC 40 in support of the proposition that once a Union citizen acquires the status of a worker, interruptions in work do not automatically lead to the loss of that status. Hence, he posits that even if the blank payslips had reflected the true position – that the Appellant continued working zero hours for zero pay – he could still have been considered a worker, and the Respondent did not consider this. The Appellant submits that the High Court erred in the following analysis: “…while certain arguments were made on behalf of the applicant at the hearing that the Minister ought to have considered whether the applicant’s situation should have been approached or considered from the perspective that he was a person who became involuntarily unemployed and has registered as a job seeker, this was not a basis that the respondent was asked to consider at any point in the course of the applications or the appeals that are the subject of these proceedings. Moreover, the application of those criteria, which are found in art. 7(3) of the Citizens Directive contradict the express basis of the applicant’s applications to the respondent, which were predicated on the applicant continuing to be employed in the State.” (paragraph 14)

33. The Respondent submits that the assessment of the Appellant’s “status of worker” should be approached as a two-limb test. First, the Appellant must demonstrate that he or she was exercising EU Treaty rights prior to the Brexit transition deadline of 31 December 2020. Second, the Appellant must show that those rights continued to be exercised beyond that date. The Respondent contends that both limbs were relevant to the Appellant’s visa applications. While the Respondent was satisfied that the first limb had been met upon the visa appeal applications, it was not satisfied that the second limb was fulfilled, due to deficiencies in the evidence provided on appeal.

34. The Respondent refers to the visa refusal letter on 9 August 2022 whereby the Respondent outlines the importance of submitting correct payslips as the Appellant had submitted three payslips for his previous employment from September to October 2020 – but no payslips from November to December 2020. The Respondent submits that this clearly highlights the importance of providing accurate payslips. The letter further emphasises that a continuous record of employment is essential to satisfy the second limb of the test – that the Appellant has continued to exercise EU rights post-Brexit deadline – with payslips forming a key component of that. Accordingly, the Respondent maintains that the Appellant ought to have been aware of the evidentiary significance of submitting accurate and complete payslips.

35. The Respondent argues that the Appellant failed to establish that he was a “worker” at the relevant time. While acknowledging that limited or part-time work may suffice under EU law, the Respondent emphasises that the Appellant submitted payslips showing zero hours and zero pay from May to September 2022. The Respondent submits the Appellant did not provide evidentiary information or documentation that he was involuntarily unemployed or had been registered as a jobseeker, both of which are necessary to retain worker status under Article 7(3) of the Citizens’ Directive – “registered as a jobseeker with the relevant employment office” and Regulation 6(3)(c) of the 2015 Regulations.

36. The Respondent further relies on the judgment of the Court of Justice of the European Union in Case C-442/26, Gusa v. Minister for Social Protection EU:C:2017:1004, which held that the retention of the status of worker during a period of unemployment is an exceptional jurisdiction within the scheme of the Directive, and is something that must be justified by an applicant, by reference to the terms of the Directive and the implementing regulations.

Analysis

37. The Appellant sought to rely on what he described as “corrected payslips” that he attempted to put before the High Court. The trial judge correctly refused to take those payslips into account as they had not been furnished to the Respondent as part of the visa appeal (paragraph 32). The trial judge was also correct in concluding that the process of review before the Minister is not collaborative and that there is no obligation on the Minister to conduct a form of broad inquiry, that the process envisaged by the 2015 Regulations involves a fact-finding exercise by the Minister on the basis of the materials presented and the enquiries carried out by the Minister, and that it is for the applicant to respond to and satisfy the concerns of the decision maker; it is not a “joint venture” (see paragraphs 32 and 53). This is confirmed by Haughton J. at paragraph 126 of his judgment in this Court in Shishu v. Minster for Justice and Equality [2023] 3 I.R. 251, where he observed that the Citizens' Directive and the 2015 Regulations create the obligation to extensively examine an applicant’s personal circumstances, but do not go so far as to impose on the Minister an investigative obligation, or an obligation to raise queries or concerns or seek additional evidence.

38. Applying those principles to this case, the onus lay on the Appellant to place the material he wished to rely upon before the Respondent; it was not for the Respondent to check whether the Appellant had intended to submit blank payslips without any explanation of same.

39. In respect of the argument that relatively limited hours of work may suffice to meet the definition of “worker” under the Citizens’ Directive, the trial judge correctly rejected this argument on the basis that while there was jurisprudence of the CJEU recognising that employment might be limited or indeed there might be periods of unemployment, no argument to that effect was made by the Appellant (paragraph 52). The doctrine of jus tertii prevents the Appellant relying on an argument that does not relate to his own individual situation. He presented himself as someone working full time. Consequently, he cannot seek to undermine the decision of the Respondent based on an argument that he did not make and that does not relate to his own circumstances.

Treatment of documentation regarding residential agreement

40. In his oral arguments, counsel for the Appellant contended that the Respondent acted irrationally by failing to contact his landlord to verify his residential address. He maintains that the concerns raised by the Respondent regarding his residence are unfounded, asserting that the documentation submitted – including a letter from the landlord and utility bills – constituted sufficient proof of residence. The Respondent correctly points out this does not form part of the grounds of appeal and nor is it contained in the written submissions. Even if it had been, the Respondent points out it would not have availed the Appellant as the trial judge correctly concluded that there was a factual basis for the Minister to make his

decision. The Respondent points to the lack of evidence of rental receipts or bank transactions corresponding to the stated rent amounts or any formal rental agreement, and to inconsistency in respect of the rental amount payable. These letters, submitted just one month apart, reflect a discrepancy in the stated rental amount. The Respondent maintains that the inconsistency in the documentation reasonably contributed to doubts regarding the Appellant’s residential status, and that the Respondent’s view in that respect was not irrational.

Analysis

41. No error has been identified by the Appellant in the approach of the trial judge in this respect. The applicable standard of review is that described by Murray, J. in A.K. v. U.S. [2022] IECA 65, i.e. where the appellate court is addressing alleged errors by a trial judge in the findings made based on affidavit or documentary evidence alone, or where a court is reviewing secondary findings of fact not dependant on oral evidence, such as inferences from admitted facts or those proven otherwise than by way of oral testimony. Under this intermediate approach, the court must adopt a somewhat deferential approach whereby the appellant must show that the trial judge clearly erred in a material respect. However, following Northern Bank v. Charlton [1979] IR 149, the appellate court can rely on its own judgment as to whether the trial judge was correct or not. This differs from the error of law standard where the appellate court simply forms its own view untrammelled by any finding reached by the trial court.

42. There was ample material before the trial judge to form his view that there was a “sufficiently solid” factual basis for the Minister to make his decision. The Appellant failed to provide coherent and clear evidence of a residential agreement. His landlord wrote in a letter of 21 January 2022 that the Appellant was renting a room for €750 per month, whereas in the letter from the landlord of 26 February 2022, he recorded it as being let at €700 per month. No explanation or supporting documentation was provided to account for or justify the discrepancy. Nor were there any bank statements or rental receipts in support of the Appellant’s claimed rental payments. Additionally, the timeframe of the rental documentation provided caused concern. At paragraph 60 of the High Court judgment, the trial judge asserted that the residential documentation provided for the visa applications, such as the utility bills, predated the period when it appeared that the Appellant had ceased employment in the State. In the circumstances, the Appellant has put forward no viable basis for criticising the decision of the trial judge. The trial judge was manifestly entitled to conclude that the decision maker had a sufficient basis for the conclusions reached in this respect. Accordingly, I reject this ground of appeal.

FAIR PROCEDURES

Inquiries made to DEASP

43. Reference has been made above to the fact that the payslips submitted by the Appellant from his employer, Gingcrroot Ltd., from May to September 2022 disclosed zero hours worked and receipt of zero pay, and that significant reliance was placed by the Respondent on this material in refusing the visa applications. The last payslip provided was for the period ending 18 September 2022. The payslips, together with other material, were submitted to the Respondent on 2 October 2022 i.e. the date of the appeal. The submission of those payslips sparked an inquiry by the Respondent with DEASP, which indicated that the Appellant had ceased his employment with Gingcrroot Ltd on 18 September 2022 and confirmed that he had no earnings since May 2022. The Decision addressed this issue as follows: “Additionally as per our checks with the DEASP, there is no current registered employment on file for your EU sponsor since his employment with Gingcrroot Ltd. ceased…. The most recent evidence of earnings submitted, from either of these companies, is on the 6/3/2022 and as per our checks with the DEASP, as there is no current employer on file for your EU sponsor it is reasonable to assume that your EU sponsor is no longer employed with Deliveroo or Just Eat. As such it appears that your EU sponsor has not been in active employment in this State since May 2022, mere weeks after your visa application was made.”

44. The Appellant argues that the Respondent’s reliance on information obtained from the DEASP constituted a breach of fair procedures and the right to be heard. The Appellant argues that the DEASP response relied upon by the Respondent was not disclosed to the Appellant prior to the refusal of the visa appeals, nor was it made available to the High Court. The Appellant argues that the lack of transparency undermined the integrity of the

decision-making process, and that the absence of disclosure deprived him of the opportunity to respond to or clarify the information. He argues that an administrative process cannot be assessed as fair where documentation submitted to address the Respondent’s adverse findings at first instance is dismissed on appeal based on information not disclosed to him. The Appellant cites Killiney and Ballybrack Development Association Ltd v. Minister for Local Government (No. 1) 112 I.L.T.R. 69 which he argues established the principle that evidence obtained from external sources must be disclosed to the affected party so that the parties have an opportunity to refute or challenge it before a decision is made.

45. The Appellant submits that the Respondent failed to carry out a complete and serious investigation into his employment status. He asserts that the Respondent did not contact the Appellant’s employer, despite having been provided with the contact details during the appeal. He maintains that the erroneous blank payslips could have been rectified had the Respondent sought clarification from the Appellant and/or the employer, drawing on the observations of Haughton J. in Shishu to the effect that despite the Minster not being under a general investigative obligation, fair procedures require that applicants be given an opportunity to respond to adverse information from third parties. Reliance was also placed on A.A and Others v. The Minister for Justice [2024] IECA 57 where Faherty J. held that the Minister had erred by failing to identify and communicate specific deficiencies in the applicant’s qualifications and work experience when refusing an employment permit for an engineering role: “Whilst the appellant did not in his appeal letter specifically ask for other required documentation to be identified by the respondent, in my view, his apparently erroneous focus on matters of travel and accommodation (to which, as I have said, he was unwittingly led by the very opaque nature of the first instance decision reasons) constituted in effect a clarion call to the respondent to put the appellant on the right road, which the respondent did not do. To my mind, in the particular circumstances of this case it behoved the respondent to do so.” (paragraph 83)

46. The Respondent argues that the DEASP checks simply corroborated information submitted by the Appellant himself. The Respondent maintains that justice is not violated by external checks that merely verify information that has already been provided by the Appellant. In support of this approach, the Respondent relies on D.H. v. Refugee Applications Commissioner & Ors [2004] IEHC 95 where it was held that the principle of audi alteram partem does not require the decision maker to debate conclusions in advance with the parties and B.N.N. v. Minister for Justice [2009] 1 IR 719, in which Hedigan J. emphasised the impracticality of requiring decision-makers to debate every credibility finding with applicants. Reliance was also placed on S.S.A. v. Minister for Justice [2023] IECA 277 where the Court of Appeal held that there was no obligation on the Respondent to alert an applicant in advance to documentation indicating that his spouse had ceased employment in the State, in circumstances where the applicant had failed to provide sufficient information.

47. The trial judge concluded that the additional inquiries with the DEASP served to corroborate what the Appellant himself had submitted to the Minister and that if the Appellant’s employment situation was capable of reasonable explanation, this ought to have been addressed when the Appellant provided the materials. He concluded the Appellant had not shown that the decision regarding his employment situation was the result of an unfair process (paragraph 54).

Analysis

48. It is important to emphasise the core conclusion reached by the Respondent on the question of the Appellant’s employment is that the Appellant has not been in active employment in the State since May 2022. That conclusion derives primarily from the fact that the Appellant submitted blank payslips from May to 18 September 2022 and after that date, submitted no more payslips. It was in those circumstances that the Respondent contacted DEASP, who confirmed (a) that the Appellant had no earnings since May and (b) that he had ceased employment with Gingcrroot Ltd. on 18 September. The Appellant had submitted a letter from Gingcrroot Ltd. stating that the Appellant had been employed by them since 4 January 2021 and that they confirmed he was working “on a part time permanent basis”. The

Decision observes as follows: “This letter is dated 27/9/2022, nine days after your sponsor [the Appellant] ceased his employment with this company and approximately four months since he had received any earnings from the said employment. As such little evidentiary weight can be apportioned to this letter and it has diminished the overall credibility of your application and your EU sponsors’ claim to continuously reside here”.

49. To summarise, the DEASP checks confirmed what the payslips had indicated: that he had not received any pay since May and that he had not been employed since 18 September. They were also treated by the Respondent as negating the evidence that the Appellant had put forward i.e. the letter from his employer asserting that he continued to be employed. Counsel for the Appellant laid considerable emphasis on the letter from the employer and argued that because the DEASP material persuaded the Respondent that the letter was not credible, the Appellant ought to have been given a chance to respond to it.

50. What fair procedures requires will vary from case to case depending on the factual situation. If a new piece of evidence, unknown to the prospective recipient of a decision, is obtained from a third party that is intended to be relied upon by the decision maker, fairness may require that the evidence is disclosed to the recipient and an opportunity given to them to respond to it. It is instructive to consider closely Haughton J.’s observation in this regard in Shishu, where, at paragraph 127 of his judgment, he observed: “Having said this there will be circumstances in which fair procedures dictate that the Minister raise matters with an applicant and consider a response before coming to a decision. This will arise where, for example, the Minister obtains relevant information from a source other than the applicant and is contemplating using that information to refuse a residence card. This in fact occurred in the present case where information “available to the Minister” indicated that Mr. Mohammed Jewel Miah, whose name appeared as landlord on the Castleblaney tenancy agreement provided with the application, was not in fact the landlord. In accordance with the requirement of fair procedures this was put to Mr. Miah in the letter of 17 August 2018 to “provide you with an opportunity to address these concerns prior to making a determination.”

- and it was duly answered. However I am satisfied that the matters which informed the Impugned Decision to refuse, while they can be criticized on other grounds, did not relate to new information or documentation sourced by the Minister which he was obliged (and failed) to put to the applicants to elicit their response.”

51. In Shishu, the Minister had received information from a third party that contradicted information provided by the applicant. In those circumstances, the Minister was under a duty to put it to the applicant. However, in this case, the information received from the third party largely corroborated the material the Appellant had already provided. It is also relevant to consider the context in which the material was obtained from DEASP. This was not a situation where the Respondent received information about a matter not previously addressed by the Appellant. The Appellant knew from the previous refusal decision of 9 August 2022 that he had to show that he had been exercising his EU rights continuously since the Brexit deadline had passed. He knew the Respondent had concluded that he had failed to provide evidence of employment contracts. In his appeal he adduced material to show his employment record. He produced Employment Detail Summaries from Revenue for 2020 and 2021 and payslips for 2020-2022, as well as the letter from his employer. The payslips raised concerns for the reasons identified above, and the checks with the DEASP confirmed what the payslips identified.

52. In the circumstances, it is not correct to suggest that the DEASP checks constituted a new or undisclosed element in the decision-making process of the Respondent. The Appellant had submitted documentary evidence which raised legitimate questions about his employment status. The Respondent, in the exercise of his discretion, sought to verify the accuracy of this evidence through an administrative check with DEASP. This was a reasonable and proportionate response to the ambiguity created by the Appellant’s own documentation which he submitted.

53. Moreover, the Appellant was not unaware that such checks could be undertaken. In earlier correspondence, including a letter dated 12 March 2021, the Appellant’s own solicitors had invited the Respondent to verify employment records with DEASP. The Appellant was therefore on notice that DEASP records could be consulted as part of the assessment process. The Respondent’s reliance on DEASP data was not an independent inquiry but a corroborative step taken in response to the Appellant’s own submissions. The Respondent was not under any obligation to notify the Appellant of each verification step, particularly where the information being verified originated from the Appellant himself.

54. Had the Appellant submitted material payslips showing he was working, and the Respondent had checked with DEASP and found inconsistent records, I think she would likely have had an obligation to put that material to the Appellant. The Appellant argues that because the letter from the employer stated he continued to be employed, evidence from DEASP that controverted that ought to have been provided to him. But the context is relevant: the core finding in the Decision was that the Appellant had not been in active employment in the State since May 2022. This conclusion comes from the material submitted by the Appellant, as confirmed by DEASP confirmation. The overall picture must be considered, as opposed to one aspect of it. The DEASP checks were not the source of the adverse finding; rather, they confirmed the concerns already apparent from the Appellant’s own evidence. The procedural fairness of the process must be assessed having regard to the opportunity given to the Appellant to present new material at the appeal stage, the material submitted by the Appellant and the fact that the Respondent’s inquiries were limited to verifying the credibility of an important part of the materials submitted. In those circumstances, I cannot agree that the Appellant was entitled to be put on notice of the outcome of the DEASP checks in the circumstances of this case, or that fair procedures were breached by the Respondent in contacting DEASP. I therefore uphold the decision of the trial judge in this respect.

CONCLUSION

55. Having regard to the foregoing, I uphold the decision of the High Court judge and reject the appeal in its entirety. As the Respondent has been entirely successful, she is presumptively entitled to her costs. Should the Appellant wish to contest this, he should file and serve a written submission of not more than 1,500 words within 10 days from the date of delivery of this judgment, after which the Respondent will have a further 10 days in which to file and serve replying submissions of similar length.

56. Since this judgment is delivered electronically, I am authorised by Whelan and Collins JJ. to state that they agree with it and the orders proposed above.