High Court dismisses judicial review of residence card revocation due to insufficient evidence of EU treaty rights.

[2025] IEHC 246

THE HIGH COURT

[2023/54 JR]

BETWEEN:

BABATUNDE AMORUWA OGIDAN

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

JUDGMENT of Mr. Justice Barry O’Donnell delivered on the 29th day of April, 2025

INTRODUCTION

1. This judgment is given in an application for relief by way of judicial review concerning a decision by the respondent to revoke the applicant’s residence card. The decision in question was made pursuant to the European Communities (Free Movement of Persons) Regulations 2015 (the Regulations) which transpose Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (the Directive). The applicant, who is not a citizen of the EU, had been granted a residence card in 2014 on foot of his marriage to an EU citizen. In 2018, he informed the respondent that his marriage to the EU citizen had broken down and the respondent commenced a process of investigating the status of the applicant.

2. For the reasons set out below, the court has decided that the application should be refused. The court is satisfied that the decision made by the respondent was rational and made in accordance with fair procedures; and in particular the reasons for the decision were set out clearly and grounded on sufficiently solid factual findings having regard to the statutory scheme.

PRELIMINARY ISSUES

3. Before addressing the substantive issues, it is necessary to clarify the manner in which some preliminary matters arose and were resolved.

4. The first issue related to the proper scope of the application to be determined by the court. The proceedings were commenced by way of an ex parte application for leave to apply for judicial review. That application was opened on the 25 January 2023 and the High Court granted the applicant leave to apply for judicial review on the 27 February 2023. As part of the grant of leave the applicant was permitted to file an amended statement of grounds. There was a further application to amend the statement of grounds, which appears to have been inconclusive. This gave rise to a dispute about the extent of the amendments made by the applicant, and whether matters canvassed by the applicant in his written legal submissions impermissibly went beyond the issues in respect of which he had been granted leave to agitate.

5. Thankfully the parties resolved that dispute by agreement, and by the time the matter was heard there was consensus that the relief claimed and the basis upon which the relief was claimed all could be dealt with by reference to the original statement of grounds. In that regard, the parties filed amended legal submissions, and the applicant substantially narrowed the issues for determination to certain core propositions. That helpful approach was maintained during the hearing of this application.

6. The second issue is that, as part of the relief claimed, the applicant sought to impugn two decisions. The first was an initial decision made by the respondent on the 11 April 2019, and the second was a review or appeal decision on the 27 October 2022 that affirmed the initial revocation order.

7. The respondent maintained a preliminary objection to that approach grounded in the following propositions: (a) the application for leave to apply for judicial review was made on the 25 January 2023 and hence the applicant is well out of time to challenge a decision made on the 11 April 2019, and no application has been made for any extension of time, and (b) in any event the applicant chose to seek a statutory review of the earlier decision which in effect was replaced or overtaken by the later review decision made on the 27 October 2022.

8. While there was considerable force and merit to the respondent’s arguments in that regard, it was not necessary to adjudicate on those matters, as, again, at the hearing of the application the applicant quite properly narrowed his focus to a challenge to the review decision made on the 27 October 2022.

9. Finally, it is important to note an unusual feature of the application. At the hearing, counsel for the applicant accepted that the applicant no longer is entitled to hold the residence card in light of the breakdown of his relationship with the EU citizen from whom he derived rights under the Regulations and Directive. Nevertheless, the applicant pressed for relief on the basis that the finding by the respondent that he had sought to rely on information that he knew to be false or misleading was unwarranted, and that such a finding is so serious that it ought to be set aside.

10. Hence, the applicant seeks to set aside a decision to revoke a residence card where he accepts that substantively he is not entitled to retain that residence card. Instead, the challenge is premised on the contention that there were vitiating flaws in the process that led to the

decision and particularly the process leading to the finding that he submitted information that was intended to mislead the respondent.

BACKGROUND

11. The applicant is a Nigerian national who has resided in Ireland since 2007. His initial arrival in the State was unlawful, but that was overtaken by events and is not material to the matters at issue in this case. In January 2013 he married a British national; and he was granted a five-year residence card on the 15 January 2014. The residence card was granted on the basis that he was married to an EU citizen who was exercising her free movement rights under the EU Treaties within this State. In the letter that informed the application that he had obtained a residence card, the following is stated: “Under Regulation 11(4) of the Regulations, you must advise this office of any change in circumstances which may affect your right to reside in the State under the Regulations (e.g. change of residence, changes in activities of the EU citizen, or change in relationship to the EU citizen).”

12. On 6 November 2018, the applicant’s solicitors contacted the EU Treaty Rights Unit at the respondent’s department to inform the respondent that the applicant had separated from his wife. The respondent, in response, requested information from the applicant regarding his wife’s activities in the State since January 2014. On the 29 December 2018 the applicant’s solicitors submitted the information that he was able to provide.

13. The documentation sent on behalf of the applicant comprised:

• Copies of current and previous passports;

• A copy of the applicant’s rent book;

• Copies of recent utility bills;

• A Copy of a television license,

• A letter from his landlord,

• Bank statements for the applicant for the second half of 2018,

• Correspondence from the Revenue Commissioners.

• A letter from the applicant which noted that he did not have access to a lot of documentation from his former wife.

14. The applicant also provided documents in relation to family law proceedings commenced in the UK, his former wife’s income tax self-assessment form dated the 3 December 2017 and some documents from 2014 addressed to the couple. In fact, the documents that are addressed to the couple all date from 2013, with the exception of a utility bill from February 2014.

15. His former wife’s Revenue self-assessment form only comprised the final two pages of four. It was for the year ending the 31 December 2017. It stated that her taxable income for the period amounted to €10,962, and that the amount of PRSI chargeable for the period was €500.

16. In the form used to apply for a divorce from England and Wales, which is dated the 12 July 2018, the applicant’s wife stated that she was habitually resident in England and Wales and had resided there for at least a year immediately prior to the presentation of the application, i.e. since at least the 12 July 2017. It can be noted that this was approximately 16 months prior to the applicant notifying the respondent of his change in circumstances.

17. On the 20 March 2019, the EU Treaty Rights Unit wrote to the applicant to inform him of a provisional opinion that the documentation submitted was false and misleading as to two matters, (a) the residence of his wife in the State up to the claimed date, and (b) whether his wife was exercising her EU Treaty rights during that period.

18. In particular, the letter questioned the authenticity of a self-assessment tax form from 2017 relating to the applicant’s wife. The information in the form was queried because information from the Department of Employment Affairs and Social Protection (DEASP) stated that the EU citizen last had returns in the State in 2013 when she had 52 weeks self-employment with earnings of €15,227. The letter noted that it was not plausible that the EU citizen could reside in the State without any source of income or state benefit to sustain a reasonable living. The letter also noted that the EU citizen had stated in the divorce application that she had been residing in England and Wales since at least July 2017.

19. The applicant did not provide a response within the period stipulated in the letter and the revocation decision was made on the 11 April 2019. The basis for the decision reflected the issues raised in the 20 March 2019 letter.

20. On the 24 April 2019, the applicant applied for a review of the revocation decision and submitted further documentation. The review form states that the applicant and his wife lived together in the State from 2013 to 2017. It noted that the EU citizen travelled back and forth from the UK “for some time after this”. The documentation included:

• Letters of reference that refer to the applicant and his former wife living as a couple and the former wife carrying out work in the State. However, they do not identify any dates for those matters.

• A bank statement for the EU citizen from 2015, which showed minimal activity.

• Self-assessment forms for the years ending 2013, 2015, 2016, and 2017.

• Copies of papers prepared for the divorce application.

21. The applicant’s solicitors wrote a further letter on the 9 December 2020. That letter denied that there was no evidence of the applicant’s former wife exercising EU Treaty rights after 2013 / 2014 and referred to the self-assessment forms that had been submitted. The letter also asserted that the authenticity of the forms was “beyond question”. It was said that the document “is genuine and is capable of independent verification”. It is apparent from the documents and submissions that the applicant placed significant reliance on the existence of the self-assessment forms - rather than the veracity of what they purported to record - as sufficient evidence of his former wife’s exercise of Treaty rights in this State.

22. It seemed that the respondent took quite some time to process and resolve the review

decision, and eventually a decision was made and communicated in a letter to the applicant dated the 27 October 2022.

23. The letter rehearses the history of the case and the matters leading to the review, including the issues raised by the deciding officer at first instance. The following matters were noted: a. Information from the DEASP indicated that the former wife had not made any contributions in respect of employment or self-employment since 2013, nor had she made any applications for State benefits. b. The former wife stated in the divorce application that she had resided in the jurisdiction of England and Wales since at least July 2017.

24. On that basis the respondent was not satisfied that the former wife had been living in Ireland and exercising her treaty rights since 2014. In those premises, the respondent was satisfied that the documentation and evidence that the applicant had submitted – to demonstrate that the former wife was residing and exercising her rights in Ireland when this was not the case – was submitted with the intention of misleading the respondent. The letter stated that the 2017 Revenue self-assessment document that had been submitted “does not appear to reflect a situation of genuine and effective employment or self employment in the State”.

25. This led to the ultimate finding that the decision to revoke the residence card would be affirmed: “The Minister is satisfied that you submitted and sought to rely upon documentation and/or information that you knew to be false and/or misleading in order to maintain a derived right of free movement and residence under EU law to which you would not otherwise be entitled. This is an abuse of rights in accordance with Regulation 27 of the Regulations.”

RELIEFS AND GROUNDS OF REVIEW

26. As noted above, the applicant was granted leave to apply for judicial review on the 27 February 2023. Taking into account the narrowing exercise conducted by the applicant, the following substantive relief is sought: a. An order of certiorari quashing the respondent’s decision of the 27 October 2022, affirming on review a decision to revoke the applicant’s residence card. b. In the alternative, an order of certiorari quashing that part of the respondent’s decision of the 27 October 2022 to the effect that the applicant had sought to rely upon documentation or information that he knew to be false and/or misleading.

27. The relevant legal grounds on which the relief was sought can be summarised as follows.

28. It is alleged that the respondent erred in fact and in law, acted unreasonably and irrationally, acted disproportionately and breached the principles of fair procedures and natural and constitutional justice and EU law in determining that the applicant had submitted/sought to rely on information/documentation that was false and misleading without providing particulars of same or reasons.

29. The argument here is that no documents are identified, and no reasons are given regarding why they were deemed to be false and misleading. In so far as tax-related documents are alleged to be false/misleading, it was argued that the submission of the forms was capable of independent verification by inquiries with the Revenue Commissioners. Hence, the particular focus of this ground is on the adequacy of the reasons given by the respondent.

30. My understanding of the basis for the challenge is confirmed by the manner in which the legal issue is framed in the applicant’s written submissions: “Was the revocation review

decision of 27 October 2022 made in accordance with due process and fair procedures?”

THE RESPONDENT’S POSITION

31. The respondent filed a statement of opposition on the 11 February 2024. The respondent also filed an affidavit sworn on the 18 July 2024 by Katherine Grace, an Assistant Principal Officer in the EU Treaty Rights Division of the respondent’s department. The affidavit presented an update as to the applicant’s immigration status in the State.

32. The statement of opposition stood over the respondent’s decision-making process, and in particular asserted that the reasons for the decision were clear from the letters setting out the revocation and review decisions. The affidavit sets out that on foot of representations made by the applicant on the 24 May 2023, he was granted a further permission to remain for two years on Stamp 4 conditions, meaning that he had temporary permission to remain in the State until the 23 May 2025. The letter in question informed the applicant of his entitlement to apply for a further renewal of that permission to remain, subject to compliance with certain identified conditions.

ARGUMENTS

33. The applicant argued that the tax assessment documents were provided to him by his former wife, and he was not in a position to undertake inquiries with the Revenue Commissioners to interrogate any of the information contained in the tax documents. It was stated that he was unaware of any issue around the authenticity of the documentation. In that regard, my understanding of the argument was that it was premised on a construction of the respondent’s reasons to the effect that the form itself – as opposed to the information contained in the form – was not authentic. In that sense, the applicant made the point that the respondent ought to have been able to make the necessary inquiries with the Revenue Commissioners to ascertain if the forms were genuine.

34. The applicant argued that the language used in the decision – referring to false and /or misleading information – interfered with this right to work. His written legal submissions referred to a finding of a marriage of convenience. However, no finding was made by the respondent that the applicant entered a marriage of convenience. It was clear that the decision did not impugn the original marriage but instead called into the question the evidence that the applicant’s former wife had been resident in the State and exercising her EU treaty rights during the relevant period.

35. The applicant drew a distinction between the filing of a self-assessment form by a selfemployed person and the payment of any amount that may be identified as payable. In that sense, the argument was that even if the applicant’s former wife did not pay taxes or make PRSI contributions it did not mean that the information in the self-assessment form was incorrect or false. It was argued that the threshold for making a finding that false or misleading information was high as it involved an effective finding of fraud. The applicant also argued that the respondent had engaged in a form of circular reasoning of the type deprecated by Ferriter J. in R.A. v. Minister for Justice [2022] IEHC 378.

36. The respondent’s arguments started from the premise that the respondent was expressly empowered to adopt measures to terminate or withdraw rights conferred by the Directive in cases of abuses of rights or fraud. The respondents highlighted article 35 of the Directive and regulation 27(1) of the Regulations, which provides that the Minister: “may revoke, refuse to make or refuse to grant… where he or she decides, in accordance with this Regulation, that the right, entitlement or status, as the case may be, concerned is being claimed on the basis of fraud or abuse of rights:

…

(b) a residence card, a permanent residence certificate or permanent residence card”.

37. The respondent took issue with the approach adopted by the applicant and argued that the review decision was clear that the documents that were treated as false or misleading were all documents that the applicant submitted that purported to indicate that his wife was resident and exercising Treaty rights in the State after 2014. In that regard, the Minister noted that the review decision at various points referred to:

a) Information from the DEASP which showed that the applicant’s former wife had not made any returns or contributions since 2013 and had never made any application for State benefits; and

b) The statement made by the applicant’s former wife in the English divorce petition from July 2018 that she was habitually resident in England and Wales and had resided there for at least a year immediately prior to the petition, i.e. since at least July 2017.

38. The respondent sought to distinguish the circumstances of this case from R.A. v. Minister for Justice. The essential argument was that the circularity identified by Ferriter J. in that case was not present in the reasoning of the respondent in this case. Here, the respondent contended that the documentation submitted by the applicant to show that his former wife had been resident and exercising Treaty rights in the State was inconsistent with the information provided by the DEASP and with the statements that she made in the divorce application.

39. In terms of the overall assessment carried out by the respondent and subject to the caveat that this was not necessarily a matter pleaded by the applicant, the respondent noted that the Minister has a wide discretion in assessing such matters. In that regard, the respondent relied on the observations made by the Court of Appeal in S.K. v Minister for Justice [2023] IECA 309 – a case concerning a finding of marriage of conveniencewhere it was stated at para. 77: “It was for the Minister to exercise her discretion in a considered fashion and to reach a decision on the basis of an assessment of all of the evidence, information, submissions and circumstances that presented in the instant case. It is not for this Court to second guess the Minister’s assessment or to substitute its view for the view of the Minister.”

40. The respondent emphasised that the statutory burden was on the applicant to provide evidence of his former wife’s residence and activities in the State. The respondent in the first instance stage expressed specific doubts about the evidence provided by the applicant and it was for the applicant to address those concerns. Unlike the position in Saneechur v. Minister for Justice [2021] IEHC 356, this was not a case where favourable evidence had been ignored.

41. Fundamentally, the respondent considered that the applicant had erroneously treated the respondent’s findings as amounting to a finding that the self-assessment forms themselves were not genuine. The respondent argued that this misconstrued the findings which were to the effect that the forms submitted did not reflect the true situation: while the forms were submitted, no payments were actually made. In that sense, the payments on foot of any self-assessment were treated by the respondent as forming part of the Revenue return process. The evidence before the respondent was that no payments were made by the former wife after 2013.

42. The respondent argued that the decision on review was rational. The finding was that the former wife’s 2017 Revenue self-assessment did not reflect a situation of genuine and effective employment or self-employment in the State. The reason for this finding was that there were no corresponding records held by the DEASP and that the totality of the evidence led to the conclusion that the former wife had not been exercising her Treaty rights in the State during the relevant period.

43. Finally, the respondent accepts that the findings made carry the potential to have serious consequences for the applicant. However, the argument was made that this does not affect the lawfulness or otherwise of the Minister’s decision. As a matter of fact, the respondent highlighted that the applicant continues to enjoy Stamp 4 permission in the State.

DISCUSSION

44. It is well established that in the general context of the situation in which the applicant found himself the burden of proof rests on him to satisfy the respondent that the relevant criteria were met. The observations made recently in the Court of Appeal in B.B., N.R. and A.B. (A Minor) v. Minister for Justice [2024] IECA 36 at para. 73 are apposite, albeit that that case concerned applications for visas for family members: “It was and is clear on the part of everyone involved (the parties, the Minister and the High Court) that the burden of proof in the first instance falls on an applicant to satisfy the Minister of various matters; which includes the factual matters underpinning an application for a visa. The burden is to produce sufficient evidence in support of those facts and to prove those on the balance of probabilities. If the Minister says that the applicant has produced “insufficient evidence” in support of the facts, that is in substance a finding that the fact has not been proved on the balance of probabilities.”

45. As with all judicial review applications, it is important that the court is mindful of the fact that it is concerned with process and not the substance of the decision. In Z.K. v. The Minister for Justice, Ireland and the Attorney General [2023] IECA 254, the Court of Appeal decided an appeal regarding a review of a decision by the Minister under the 2015 Regulations concerning an alleged marriage of convenience. Power J. emphasised at para. 113 that: “…it is important to recall that the issue before the Court is not whether the Minister was correct in concluding that ZK’s marriage was one of convenience, but, rather, whether the process that led to the Minister’s decision was vitiated by an error of such significance that the decision ought to be set aside. That is the important principle that governs the appeal.”

46. The Court of Appeal also has distinguished between statements or assertions made by or on behalf of an applicant and the vouching or supporting document provided to support those assertions. In Abbas v. Minister for Justice and Equality [2021] IECA 16, the Court of Appeal

– dealing with a “permitted family member” dependency claim - made it clear at para. 82 that the Minister requires to be provided with supporting or vouching documentation in relation to the matters asserted therein. As noted by Binchy J.: “While the statements are necessary in order to provide the [Minister] with essential background information relating to the Application, and to give a context to assist in explaining supporting or vouching documentation provided by an applicant, it is really only the latter documentation that constitutes evidence i.e. it is evidence provided in support of the factual background relied upon by an applicant in his supporting statement(s).Without such supporting or vouching documentation, the [Minister] would have great difficulty adjudicating favourably upon an application for residency.”

47. The above observations were made in the context of an application for residency by an applicant who claimed to be a “permitted family member” who was dependent on the EU citizen concerned. However, the general thrust of the observations is applicable to the analogous situation of an inquiry as to whether the applicant remained entitled to a residence card on the basis that his former wife as an EU citizen was exercising their Treaty rights at the relevant time.

48. In terms of the standard of review, in Shishu v. The Minster for Justice and Equality [2021] IECA 1, Haughton J. in the Court of Appeal confirmed at para. 94 the standard of review in cases involving the Directive: “I am satisfied therefore that the trial judge was required to satisfy himself that the Impugned Decision was made on a sufficiently solid factual basis, and that the reasons given were justified on a rational basis that took into account the personal circumstances of the applicants.”

49. The Court of Appeal in that case was dealing with a question of whether an applicant was a permitted family member for the purposes of a visa application. The Court made clear that although the respondent enjoyed a discretion in a review application to carry out further enquiries, but there was no obligation to do so. The Court at para. 122, agreeing with the Minister, found that “[t]he process is not a joint venture, in which there is some ill-defined obligation on the Minister to assist applicants”.

50. As noted above, the applicant does not contend that he is still now entitled to a residence card. Rather, he is challenging the finding that he submitted false and misleading documentation. The applicant submits that if the self-assessment of 2017 is deemed to be genuine, then the finding of the respondent must fall away. In addition, there was an argument that the respondent did not provide adequate reasons in support of the findings that were made.

51. In the first instance, I am satisfied that there adequate reasons were given for the

decision in this case. This is apparent from the review decision itself and reinforced in light of the previous dealings between the parties. The applicant had been informed that the Minister was not satisfied that his former wife had been exercising her EU Treaty rights in the State.

That was based on the statement in the divorce papers – which I consider should be treated as statements made in the course of a formal and solemn legal process – to the effect that she had been residing in England and Wales since July 2017 at the latest. In addition, the information from the DEASP strongly supported the contention that the former wife was not exercising her Treaty rights in the sense that while she may have completed and submitted documents to the Revenue Commissioners, those documents were not consistent with the actual position in terms of the payment of PRSI and so forth.

52. The applicant – being aware of the issues that had been raised in the first instance

decision and availing of legal representation – was afforded the opportunity to address the concerns in the review decision. The representations that he made did not satisfy the respondent and a finding was made that the information he provided did not dispel the concerns. It was clear from the review decision that the respondent considered that insofar as the applicant sought to persuade the respondent that his former wife was in fact exercising her Treaty rights, this was contradicted by the evidence available from the DEASP and the statements in the divorce papers. In that context, the respondent’s finding that the applicant provided false and misleading information flows from the primary finding that the evidence did not support the proposition that his former wife was exercising her Treaty rights for the period of time under consideration.

53. I am therefore satisfied that the applicant was provided with sufficient reasons to understand why the respondent made the review decision and was equipped with reasons that were adequate to enable him to make a decision to challenge that decision.

54. On the broader reasonableness argument, I consider that the applicant has artificially sought to treat the review decision as one that found the 2017 self-assessment form itself was not genuine when clearly, in my view, the finding was that the information contained within the self-assessment from did not reflect the true position.

55. The applicant sought to establish derived rights, and in doing so submitted the documentation referred to above. The objective evidence available to and relied upon by the respondent showed that from July 2017, the former spouse was resident in England and Wales. Yet, the applicant sought to persuade the respondent - with the intention of establishing derived rights of freedom of movement – that the situation was otherwise.

56. In the review decision, the respondent noted that the tax returns from 2014 onwards suggest that the applicant’s former wife was not earning sufficient income to support herself in the State. Furthermore, the information provided by DEASP shows that no social protection was applied for by the former wife, which reinforced the conclusion that she was not residing in the State.

57. The enquiries made to the DEASP further showed that his former wife did not make any PRSI payments for the 2017 tax period, and indeed no payment had been made since 2014. While the applicant notes that the payment of PRSI does not determine that his former wife was exercising their treaty rights, the respondent was entitled to consider that the lack of payment of PRSI, in combination with low income, showed that the applicant had not provided sufficient evidence that his former wife was not exercising her Treaty rights. The respondent concluded, and in my view was entitled to conclude, that the low level of income in combination with the lack of application for social protection supported the view that former wife could not have been supporting herself in this jurisdiction.

58. It also cannot be ignored that the applicant was aware that his former wife was premising her divorce application on the basis that she was resident in England and Wales from at least July 2017, but continued to assert from November 2018 that she was exercising her EU Treaty rights in this jurisdiction. Thus, notwithstanding the authenticity issue of the selfassessment, the Applicant submitted documentation intending to prove residency within Ireland, at a time when he was aware (through the Divorce Proceedings) that the former spouse was resident in the United Kingdom.

59. The court is not satisfied that the decision in this case suffers from the infirmity identified in R.A. v. Minister for Justice. In that case, Ferriter J. found as follows at para. 68: “Aside from the question of the proper characterisation of the marriage, no material was pointed to which was suggested to be fraudulent or falsified of itself. This was not a case where documentation or information had been submitted which was itself false e.g. it was not a case where there was a forged marriage certificate or where material factual information (such as the residence of the Union citizen in Ireland) was deliberately misstated. Rather, the question was one of the proper characterisation of the marriage for immigration law purposes in light of facts which were largely not in dispute.”

60. The situation here is plainly distinguishable. The documentation submitted by the applicant as support for the claim that his former wife had been resident and exercising Treaty rights in the State was inconsistent with the information provided by the DEASP and with the divorce application papers that had been supplied by the applicant. The reasoning here was not circular. Instead, the conclusion flowed from factual findings about the sufficiency of the evidence submitted by the applicant. The subsequent finding was that the information submitted was false and/or misleading.

61. In the premises the application for judicial review will be refused. As this judgment is being delivered electronically my provisional view is that the respondent is entitled to the costs of the proceedings to be adjudicated in default of agreement. I will list the matter before me for final orders and for any argument that the parties may wish to make regarding costs at 10.30am on Wednesday, the 7 May 2025.