High Court dismisses judicial review claim regarding marriage of convenience finding under EU Directive.

THE HIGH COURT

JUDICIAL REVIEW

[2025] IEHC 259

RECORD NO. 2024/340 JR

BETWEEN

Y

APPLICANT

- AND-

THE MINISTER FOR JUSTICE

RESPONDENT

JUDGMENT of Mr. Justice Mark Heslin delivered on the 6th day of May 2025

Introduction

1. On 12 December 2023 the respondent (otherwise “the Minister”) issued a decision which found that the applicant had contracted a marriage of convenience (“the decision”). In arguing that the decision was not made in accordance with law, the applicant asserts the following:

(1) The decision was not made in accordance with due process and fair procedures;

(2) The respondent arrived at a finding that the marriage was one of convenience based on matters of a circumstantial or peripheral nature; and

(3) The Minister lacked jurisdiction to make the decision under Article 35 of Directive 38/2004/EC on the right of citizens of the Union and their family member to move and reside freely within the territory of the Member States (“the Directive”) in circumstances where the applicant was no longer seeking to obtain a benefit pursuant to the Directive. In 2023, the applicant was granted permission to remain in this State under the ‘undocumented migrants’ scheme. Notwithstanding this, both sides submit and I agree that the present proceedings are not moot and should be decided.

Facts

2. There is no significant dispute in relation to the facts which I propose to set out in chronological order, as follows.

3. The applicant is a citizen of Pakistan who was born in 1981.

2003

4. The applicant arrived in Ireland, as a student, in July 2003 and retained student status until August 2010.

2010

5. The applicant married Ms. V a citizen of Estonia, on 30 August 2010 (“the marriage”).

2011

6. On the basis of the marriage, and reflecting the exercise of EU Treaty Rights in this State, the applicant was granted a residence card (otherwise “EUTR permission”) on 19 April 2011.

7. The EUTR permission stated inter alia:

“Please note that the onus is on you to keep this office up to date at all times of any change in your circumstances.”

8. The residence card, granted on 19 April 2011, was valid for a period of five years, i.e. expiring on 18 April 2016.

2012

9. The applicant avers, at para. 13 of his grounding affidavit sworn on 6 March 2024, that his marriage to Ms. V “encountered difficulties from around 2012”.

2013

10. At para. 13 of his grounding affidavit the applicant avers inter alia:

“To the best of my knowledge [Ms. V] departed this country for the last time around June of 2013 and has not since returned.”

2014

11. Exhibit ‘Y1’ to the applicants grounding affidavit includes inter alia a translation of a ruling by the Estonian court in relation to divorce proceedings between Ms. V (plaintiff) and the applicant (defendant) which states inter alia:

“Circumstances and Procedures On the 10th November 2014, [Ms. V] submitted a claim to the Harju County Court in order to divorce her marriage to [Mr. Y]. The plaintiff and the defendant have entered into marriage on the 30th August 2010 in the Irish Republic, [named county/city] registrar’s office and the marriage has been registered with number [given]. The plaintiff has submitted a relevant marriage certificate to the court. According to the plaintiff, conjugal relations have definitely terminated in 2012 and both parties currently reside in different countries. The plaintiff resides in the Republic of Estonia and the defendant has a residence in the Irish Republic…” (emphasis added).

12. The final page of the said ruling, dated 23 February 2015, notes inter alia: “the plaintiff is requesting a divorce. The defendant has admitted the claim”. The ruling goes on to state that: “conjugal relations have terminated and there is reason to believe that the spouses will not restore cohabitation. The court finds the claim to be reasoned and that it is to be substantiated, marriage between the parties shall be considered terminated, meaning a divorce has been granted.”

13. On the applicant’s account, he travelled to Pakistan in November 2014 to visit his father who was seriously ill and who passed away on 4 December 2014. The applicant says that at the funeral he met the family of a woman, Ms. M, who was planning to come to Ireland for studies and that, a few days later, he discussed Ms. M’s plans with her.

2015

14. On the plaintiff’s account he and Ms. M became friends and when she obtained her visa he offered her accommodation in a flat he was living in and that she moved in with him in August 2015. They fell in love and found out, in December 2015, that Ms. M. was pregnant.

15. Despite the applicant’s obligation to do so, it is common case that the applicant did not advise the Minister, at the time, of the material changes in his circumstances, including:-

(i) the breakdown of the marriage from 2012;

(ii) the departure of Ms. V from this State in 2013;

(iii) the divorce proceedings commenced in 2014;

(iv) the grant of a divorce by the Estonia court in February 2015;

(v) his new relationship with Ms. M and the impending birth of their child.

April 2016

16. On 13 April 2016, the applicant completed a ‘Form EU5’ application for retention of a residence card based on the departure of Ms. V from the State and his divorce from her (the “retention application”). Section 3 of the ‘Form EU5’ contained inter alia the following information:

“Date of departure of EU citizen from the State – 06/2013;

Date of initiation annulment or dissolution proceedings – 26/11/2014;

Date of decree of divorce, nullity or dissolution – 23/02/2015”

17. The applicant was given temporary permission to remain while his retention application was pending.

Dec 2016

18. By letter dated 5 December 2016 the respondent wrote to the applicant stating inter alia:

“Regulation 10(2) of the Regulations refers to a retention of a right of residence on an individual and personal basis in the event of divorce, where prior to the initiation of divorce proceedings, the marriage had lasted three years, including one year in the State. From evidence you provided, you were married on 30/08/2010 and divorced on 23/02/2015.

According to submissions made in your divorce papers, the relationship terminated in 2012, therefore your marriage did not subsist for a period of three years. As a result you failed to meet Regulation 10(2)(b)(i) of the Regulations.

Regulation 6(3) of the Regulations permits both EU and non-EU nationals to reside in the State for a period of greater than 3 months, subject to meeting criteria set out in 6(3)(a)

and 6(3)(b) respectively. As your EU spouse was not resident in the State prior to the initiation of your divorce, and in exercise of their EU Treaty Rights in accordance with the provisions of Regulation 6(3)(a), your derived right of residence under Regulation 6(3)(b)

of the Regulations has therefore ceased.

As you fail to meet the above regulations, the Minister intends to refuse your application for retention of permission to remain in the State…”

19. The Minister’s 5 December 2016 letter invited the applicant to make written representations as to why his retention application should not be refused and why his permission to remain in the State should not be revoked. With respect to the foregoing, the applicant makes the following averments at para. 17 of his grounding affidavit:

“17. I say that I did not make any such representations as my solicitor advised me that there was simply no point; the Minister’s position was correct as a matter of fact and law.

I did not come under the provisions of the Directive with regard to retention of a residence card.”

Feb 2017

20. By letter dated 20 February 2017, the applicant was informed that his retention application had been refused. The applicant did not seek a review of that decision.

Dec 2017

21. In December 2017, Ms. M was granted permission to remain in Ireland on the basis of parentage of an Irish citizen child. Ms. M was then the applicant’s partner and subsequently became his wife.

Jan 2018

22. On 14 January 2018, the applicant was granted permission to remain on the basis of his parentage of an Irish citizen child.

Dec 2018

23. On 6 December 2018, the respondent sent the applicant what was described during the hearing before me as a “fair procedures letter”. That description is entirely appropriate given that this letter (i) informed the applicant that the Minister had concerns regarding the marriage; (ii)

gave the reasons for those concerns; (iii) informed the applicant that it was proposed to make a finding that the marriage was one of convenience; and (iv) invited the applicant to make representations within 21 days. I will presently look in some detail at the contents of the fair procedures letter.

Article 35

24. Bearing in mind that the applicant asserts a lack of due process and fair procedures it is appropriate, at this juncture, to have regard to Article 35 of the Directive, which provides:

“Article 35 Abuse of rights Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience. Any such measures shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31.”

25. Articles 30 and 31 mandate procedural safeguards such as the notification of decisions, in writing, in a comprehensible manner as well as notification of and access to appeals/judicial review. It is common case that the foregoing articles are transposed by means of Regulations 25 (review of decisions); 27 (cessation of entitlements); and 28 (marriages of convenience) of the Irish European Communities (Free Movement of Persons) Regulations 2015 (SI 548/2015) (“the 2015 Regulations”).

Regulation 27

26. Regulation 27 of the 2015 Regulations begins as follows:

“27. (1) The Minister may revoke, refuse to make or refuse to grant, as the case may be, any of the following 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”

27. The foregoing is followed by a setting out of various rights of residence, following which Regulation 27 states:

“(2) Where the Minister suspects, on reasonable grounds, that a right, entitlement or status of being treated as a permitted family member conferred by these Regulations is being claimed, or has been obtained, on the basis of fraud or abuse of rights, he or she shall be entitled to make such enquiries and to obtain such information as is reasonably necessary to investigate the matter.

(3) Where the Minister proposes to exercise his or her power under paragraph (1), he or she shall -

(a) give notice in writing to the person concerned, which shall set out the reasons for his proposal and shall give the person concerned a period of 21 days within which to give reasons as to why the right, entitlement or status concerned should not be revoked, and

(b) consider any submissions made in accordance with subparagraph (a).

(4) In this Regulation, ‘abuse of rights’ shall include a marriage of convenience or civil partnership of convenience.”

Principles

28. Having made reference to the Directive and the Regulations, it is useful at this point to note certain legal principles which are not in dispute. The joint book of authorities which was helpfully provided to me included the decision of Ms. Justice Bolger in A. v The Minister for Justice [2022] IEHC 408 (“A”). Just as Bolger J. did at paragraph 25 in A, it is useful to cite a number of established principes which were set out by Mr. Justice Humphreys at para. 15 of the learned judge’s decision in M.H (Pakistan) v The International Protection Appeals Tribunal & Ors [2020]:-

(i) there is a presumption of validity for administrative decisions: per Finlay P., as he then was, in In re Comhaltas Ceoltóirí Éireann (Unreported, High Court, 5th December, 1977) and per Keane J., as he then was, in Campus Oil v. Minister for Industry and Energy (No. 2) [1983] I.R. 88 at 102;

(ii) there is a presumption that material has been considered if the decision says so: per Hardiman J. in G.K. v. Minister for Justice, Equality and Law Reform [2002] 2 I.R. 418, [2002] 1 I.L.R.M. 401;

(iii) the State has a wide discretion in immigration matters: per Keane C.J. for the court in In re Illegal Immigrants (Trafficking) Bill 1999 [2000] IESC 19, [2000] 2 I.R. 360 (paras. 82-83), citing Costello J., as he then was, in Pok Sun Shum v. Ireland [1986] I.L.R.M. 593 at 599;

(iv) the common good includes the control of non-nationals, and the normal system of application to enter the State is from outside: per Hardiman J. in F.P. v. Minister for Justice [2002] 1 I.R. 164 at p. 174;

(v) judicial review is not an appeal on the merits and it is not for the court to step into the shoes of the decision maker: per Finlay C.J. in the State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 at 654; per Denham J., as she then was, in Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 I.R.

701 at 743; and per Clarke J., as he then was (McKechnie and Dunne JJ. concurring), in Sweeney v. Fahy [2014] IESC 50 (Unreported, Supreme Court, 31st July, 2014), at paras. 3.8 to 3.15.

(vi) the weight to be given to the evidence is quintessentially a matter for the decisionmaker: per Birmingham J., as he then was, in M.E. v. Refugee Appeals Tribunal [2008] IEHC 192 (Unreported, High Court, 27th June, 2008) at para. 27;

(vii) the onus of proof remains on the applicant at all times: per Denham J. as she then was in Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 I.R. 701 at 743;

(viii) it is not for the applicant to dictate the procedures to be adopted: see per Ryan P. in A.B. v. The Minister for Justice and Equality [2016] IECA 48 (Unreported, Court of Appeal, 26th February, 2016) at para. 43;

(ix) an applicant does not have a legal entitlement to a discursive narrative decision addressing all submissions: per Clarke J., as he then was (Fennelly and MacMenamin JJ. concurring) in Rawson v. Minister for Defence [2012] IESC 26 (Unreported, Supreme Court, 1st May, 2012) at para. 6.9;

(x) a judicial review applicant is confined to what is pleaded: while the view of Costello P.

regarding the circumstances of amendment of pleadings evolved significantly since McCormack v. Garda Síochána Complaints Board [1997] 2 I.R. 489, at 503, his view that the scope of judicial review is limited by the order granting leave remains fundamental; and

(xi) a judicial review applicant must plead with specificity: O. 84, r. 20(3) that an “assertion in general terms” is inadequate, but the applicant must “state precisely each such ground, giving particulars where appropriate”.

The fair procedures letter

29. Bearing in mind the foregoing principles and the applicant’s claim that he was not afforded due process, I now return to the respondent’s 4-page fair procedures letter, dated 6 December 2018, the first page of which stated inter alia:

“…It is noted that during your renewal of student permission you never informed this office of your relationship to the EU citizen. The Minister has concerns that you contrived to enter into marriage with EU citizen [Ms. V] in order to maintain a residence permission in this State.

It is not stated when the EU citizen entered the State. Information available to the Minister via the Department of Employment Affairs and Social Protection indicates that [Ms. V] obtained a PPS number on the 26/02/2010. As a PPS number is essential for employment and to access State services, and in the absence of any documentation evidencing the EU citizens presence in the State prior 26/02/2010, the Minister is of the opinion that the EU citizen first entered the State on or shortly before the date on which her PPS number was allocated.

You and [Ms. V] married on 30/08/2010, taking into consideration that a three month notice period is required when intending to marry in the State, you would have to serve an intention to marry no later than 30/05/2010. This would suggest that approximately three months after the EU citizen entered the State you and [Ms. V] decided to marry. This would raise concerns regarding your relationship, given the short time between [Ms. V]’s entry into the State, your getting married and your submission of a residence application...”

30. The letter proceeded to point out a number of discrepancies in relation to the documentation submitted with the original application, stating inter alia:

“…It is noted in the letter confirming employment dated 01/10/2010, shows a start date of 01/06/2010 and in the letter dated 15/01/2011, shows a start date of 01/05/2010 and a cease date of 31/12/2010. It is noted that the P45 submitted the ceased date is 01/01/2011. While the letter confirming employment dated 15/01/2011 shows a ceased date of 31/12/2010. Furthermore it is noted on the marriage certificate dated 30/08/2010 the EU citizen states her occupation as ‘Not Employed’. This is during the alleged period of employment. Information available to the Minister indicates that the EU citizen began this employment on 01/07/2010. It would seem unusual that a genuine employment would hold such discrepancies in dates…

Information available to the Minister indicates that the EU citizen was employed for 35 weeks in 2010. No employment record exists for the EU citizen in 2011. The EU citizen was intermittently employed in the State between 2012 until 2014. However, it is noted that the earnings of the EU citizen are highly limited for these periods of employment. It is not credible to believe that an adult could reside at subsistence level in this State on such minimal earnings. It should also be noted that the EU citizen has not made any claims for State benefits…

As evidence of both you and [Ms. V] residing in the State you submitted two letters confirming tenancies, utilities bill and a tenancy agreement. On the tenancy agreement provided it shows a start date of 31/05/2010 at [number/named] Road, the two letters confirming tenancy dated 01/10/2010 and 22/02/2011 show a start date of 01/06/2010.

This is contradictory information. The amended tax credit certificate dated 04/08/2010 show an address for [Ms. V] at [number/named] Drive. This is approximately two months after the tenancy for [number/named] Road began. The marriage certificate dated 30/08/2010 show current address at [number/named] Drive and future address at [number/named] Road. Your tenancy agreement for [number/named] Road, allegedly began prior to your marriage although it was not listed as your current address. On your EU1 application form received on 19/10/2010 you state that both you and [Ms. V] are residing at [number/named] Drive, this is at a time when you were allegedly residing at [number/named] Road. Furthermore, on utility bills submitted dated 21/09/2010, 11/02/2011 and 28/01/2011 list the name [Ms. V]. There are numerous inconsistencies with the documentation you provided as evidence of both you and [Ms. V] residing in the State. This calls into question the veracity of the documentation provided and the Minister is concerned regarding the validity of the documentation provided…”

Marriages of convenience

31. Regulation 28 of the 2015 Regulations concerns marriages of convenience and provides:

“28. (1) The Minister, in making his or her determination of any matter relevant to these Regulations, may disregard a particular marriage as a factor bearing on that determination where the Minister deems or determines that marriage to be a marriage of convenience.

(2) Where the Minister, in taking into account a marriage for the purpose of making a determination of any matter relevant to these Regulations, has reasonable grounds for considering that the marriage is a marriage of convenience, he or she may send a notice to the parties to the marriage requiring the persons concerned to provide, within the time limit specified in that notice, such information as is reasonably necessary, either in writing or in person, to satisfy the Minister that the marriage is not a marriage of convenience.

(3) Where a person who is subject to a requirement under paragraph (2) fails to provide the information concerned within the time limit specified in the relevant notice, the Minister may deem the marriage to be a marriage of convenience.

(4) The Minister may exercise the power under paragraph (2) in respect of a particular marriage whether or not –

(a) that marriage has previously been taken into account in determining any matter relevant to these Regulations or the Regulations of 2006, or

(b) that paragraph has previously been invoked in respect of that marriage.

(5) The Minister shall determine whether a marriage referred to in paragraph (2) is a marriage of convenience having regard to –

(a) any information furnished under these Regulations, and

(b) such of the following matters as appear to the Minister to be relevant in the circumstances:

(i) the nature of the ceremony on the basis of which the parties assert that they are married;

(ii) whether the parties have been residing together as husband and wife, and, if so, the length of time during which they have so resided;

(iii) the extent to which the parties have been sharing income and outgoings;

(iv) the extent to which the parties have been dealing with other organs of the State or organs of any other state as a married couple;

(v) the nature of the relationship between the parties prior to the marriage;

(vi) whether the parties are familiar with the other’s personal details;

(vii) whether the parties speak a language that is understood by both of them;

(viii) whether a sum of money or other inducement was exchanged in order for the marriage to be contracted (and, if so, whether this represented a dowry given in the case of persons from a country or society where the provision of a dowry on the occasion of marriage is a common practice);

(ix) whether the parties have a continuing commitment to mutual emotional and financial support;

(x) the history of each of the parties including any evidence that either of them has previously entered into a marriage of convenience or a civil partnership of convenience;

(xi) whether any previous conduct of either of the parties indicates that either of them has previously arranged a marriage of convenience or otherwise attempted to circumvent the immigration laws of the State or any other state;

(xii) the immigration status of the parties in the State or in any other state;

(xiii) any information provided by an tArd-Chláraitheoir or registrar within the meaning of the Civil Registration Act 2004;

(xiv) any other matters which appear to the Minister to raise reasonable grounds for considering the marriage to be a marriage of convenience.

(6) For the purposes of these Regulations “marriage of convenience” means a marriage contracted, whether inside or outside the State, for the sole purpose of obtaining an entitlement under-

(a) the Council Directive or these Regulations,

(b) any measure adopted by a Member State to transpose the Directive, or

(c) any law of the State concerning the entry and residence of foreign nationals in the State or the equivalent law of another state.” (emphasis added).

32. By means of the fair procedures letter, the Minister made clear to the applicant that a variety of discrepancies in the documentation submitted with the original application appeared to the Minister to raise reasonable grounds for considering the marriage to be one of convenience (per Regulation 28(5)(b)(xiv)). Furthermore, whilst the Minister did not identify specific subsections of Regulation 28(5)(b), the substance of the Minister’s fair procedures letter raised concerns regarding a range of matters, including, those referenced in Regulation 28(5)(b)(ii); (iii); (iv); (v) and (ix). The fair procedures letter also stated inter alia:

“On 20/04/2016 you submitted an application based on your divorce to [Ms. V]. You submitted a Court Ruling for your divorce dated 05/12/2014, letter confirming tenancy, utility bills, documentation relating to your employment and residence in the State. This application was refused on the 20/02/2017 as you could not provide evidence of the EU citizen exercising her EU treaty rights in the State after 2011.

On this application form you stated that the EU citizen left the State some time in June 2013. On the Court Ruling submitted it is stated that the relationship terminated at an unspecified date in 2012. This would indicate approximately eight months after you were approved by this office you and the EU citizen ceased to be in a relationship. This is of concern to the Minister regarding validity of your relationship with the EU citizen.”

33. Again, without specifying the subsection, the Minister was clearly putting the applicant on notice of concerns, including, of the type specified in Regulation 28(5)(b)(ii); (v) and (ix). The fair procedures letter also stated inter alia:

“It is noted you have not advised this office of a change in your circumstances as you are required to do in accordance with provisions of Regulation 11(2) of the Regulations.”

34. The fair procedures letter made clear that, based on the information referred to in the letter, the Minister was of the opinion that the applicant had committed a fraudulent act within the meaning of the Regulations and “based on an assessment of your application to date, the Minister is also of the opinion that your marriage may be one of convenience, contracted for the sole purpose of obtaining a derived right of free movement and residence under EU law as a spouse who would not otherwise have such a right”. The Minister gave notice to the applicant that if the foregoing was found to be the case, the Minister’s intention was to make a revocation of permission under Regulations 27(1) and 28(2) of the 2015 Regulations. The fair procedures letter concluded by stating inter alia:

“You are now required to provide comprehensive representations to the Minister within 21 days of the date of this letter, stating why your permission to remain should not be revoked, to dismiss concerns that you have engaged in a contrived activity in order to obtain a residence card and to address the issue of your submission of false and misleading information to this office.

Any representations should also include a detailed immigration history of the EU citizen including dates of travel to and from the State in the period from April 2011 to December 2014 and state the purpose of such travel. A detailed relationship history should also be provided along with any other information/documentary evidence you may wish to provide as to why your application for permission to remain in the State should not be revoked.

(emphasis added).

35. In the foregoing manner, not only did the Minister put the applicant ‘squarely’ on notice of concerns with respect to a range of matters addressed in Regulation 28(5)(b) of the 2015 Regulations, the Minister invited the applicant to provide specific information and documentation in any representations the applicant might make. This included a request for a “detailed relationship history”. It is uncontroversial to suggest that a detailed relationship history is relevant to concerns with respect to a number of matters specified in the 2015 Regulations, including, Regulation 28(5)(b)(ii); (v) and (ix).

36. In view of the foregoing invitation to provide inter alia a detailed relationship history and any other information or documentary evidence, the applicant was made well aware that the Minister’s concerns were not limited to the range of documentary inconsistencies identified. However, as will presently be explained, the applicant chose to focus his submissions on attempting to explain the documentary inconsistencies.

The applicants’ submissions

37. Some days after receiving the 6 December 2018 fair procedures letter, the applicant wrote to the Minister. The contents of the letter can be summarised as follows: (i) the applicant stated that he did not keep records regarding this ex-wife; (ii) he sought to explain certain of the inconsistencies in relation to the documentation submitted in 2010; (iii) he suggested that it would have been fairer if the Minister’s concerns were raised in 2010/2011; (iv) he apologised for failing to provide updated information to the Minister; (v) he gave details of his then current situation and emphasised his love of this country; (vi) he provided the very briefest of details regarding his relationship with Ms. V; and (vii) enclosed certain photographs.

Detailed relationship history

38. It will be recalled that in the Minister’s fair procedures letter, concerns were raised regarding, inter alia the nature of the relationship between the parties prior to the marriage; whether the applicant and Ms. V resided together as husband and wife and, if so, the length of time. Bearing in mind that the fair procedures letter explicitly called upon the applicant to provide a “detailed relationship history”, the following is the entire of what the applicant submitted in relation to his relationship to Ms. V prior to their marriage:

“I first met [Ms. V] around Oct. or Nov. 2009 with a common friends [A] and [B]. She had only recently moved to Ireland. We liked each other and started dating. We decided to get married and she moved in with me around March 2010…

… I met [Ms. V] at time when I was nearly 30 and was looking to start a family, we liked each other and got married, we had a loving relationship while we were together…”

39. I pause to say that the fact that the applicant and Ms. V met and married was not new information. Beyond those basic details, the applicant chose to say next to nothing about the history of his relationship with Ms. V. Without intending any disrespect, to describe a relationship as a “loving” one gives no detail regarding the specific relationship in question. In objective terms, the applicant went no further that than to add the label “loving” to the fact of his marriage. Despite the invitation made by the Minister, the applicant chose not to provide a detailed account of the nature of his relationship with Ms. V.

40. During the hearing, counsel for the applicant submitted inter alia that whilst the applicant “didn’t say nothing” the applicant “didn’t say very much about the marriage” other than to give some “broad brush stroke” details. The foregoing submission did not involve any concession on behalf of the applicant. It seems to me that it was a submission which appropriately reflected the fact that, despite having been afforded every opportunity to do so, the applicant did not provide a detailed relationship history. In objective terms, what the applicant gave the Minister was the briefest of details which said nothing whatsoever about the nature or history of the relationship in question.

Documentation

41. Despite having been called upon to provide “any other information/documentary evidence”, the applicant provided no documentation concerning the relationship, merely stating inter alia:

“… as my EU Treaty Rights application was refused in Dec. 2016, I did not feel the need to keep records regarding my ex-wife [Ms. V] so I did not keep them.”

42. The applicant’s submission described the reason for the deterioration of the relationship in 2012 as follows:

“My ex-wife [Ms. V] has a son from a previous relationship. His name is [R]. At the time of our marriage he was about four year of age and was living with his grandparents. [Ms. V] wanted to bring him here and live with us, so she brought him to Ireland couple of times for short visits in 2011 but he did not stay with us as his father wanted him stay in Estonia. Also [Ms. V] wanted to be with her son so in 2012 she started spending more time in Estonia than in Ireland and when she was here she was working in a restaurant but I was paying for her part of rent. Towards the end of 2012 we knew it was going to be hard for [R] to come and live in Ireland and our relationship deteriorated as I wanted to have children and start a family also. She last brought [R] to Ireland in June 2013 and we discussed but at that point it was apparent that it was going to be hard for us to be together. [Ms. V] filed for divorce in Tallinn Estonia on 26/11/2014 which was granted 23/02/2015. [Ms. V] might have visited Ireland after that which I am not aware of. Whilst I am not in contact with [Ms. V] as much since our divorce, your office can contact her, I am sure she will confirm those circumstances.”

43. Quite apart from the fact that the applicant did not provide the Minister with any contact details for Ms. V, it was not suggested at the hearing that the Minister was under any obligation to carry out investigations which the applicant could have, but chose not, to conduct. On the contrary, it was made clear during the hearing that the applicant no longer asserts that the respondent unlawfully shifted the burden of proof onto the applicant to disprove the Minister’s initial findings.

Photographs

44. The applicant’s submission stated inter alia:

“I made an application for retention of EU rights in April 2016 which was rejected on fair grounds and I accepted and did not appeal. And due to the fact that we were not together and my application was refused, I did not keep [Ms. V]’s personal records any longer. All I have are few photos of while we were together which I will send with this letter.”

(emphasis added).

45. Copies of the said photographs were contained in exhibit ‘Y1’ to the applicant’s grounding affidavit. There were nine photographs in all, several of which show a couple in wedding attire. One photograph shows that couple accompanied by seven others. The balance of the photographs show the couple in casual clothing, and a child appears in two photographs. The applicant did not identify (i) anyone said to be any of the photographs; (ii) when they were taken; (iii) where they were taken; and (iv) no narrative was provided in relation to any photographs.

46. Before proceeding further, and without for a moment purporting to ‘stand in the shoes’ of the decision-maker, it can fairly be said that there is a difference between (i) the personal recollections of someone lucky enough to fall in love with another, the significance and loving nature of which relationship was expressed in their marriage; and (ii) physical documentation/records containing information concerning the relationship/marriage. Regarding (i), the applicant chose to say next to nothing about what he recalled of the relationship. Regarding (ii), the applicant’s position is captured by the statement: “I did not feel the need to keep records… so I did not keep them”. Nor did the applicant provide the respondent with details of any efforts to contact his former spouse in an attempt to obtain any information or documentation.

Discrepancies

47. Instead, the applicant’s submission to the respondent focused on the discrepancies highlighted by the Minister. The manner in which the applicant sought to address these concerns can be seen from the following:

“We applied to be married in [county/city] registrar office. I don’t remember the exact date but it must be end of April 2010 or start of May 2010 that we attended the registrar office and filled a form. She was unemployed at that time and living at [number/named] Drive. That’s why marriage certificate had our old address of [number/named] Drive. I remember on the day of marriage 30/08/2010 we requested the address to be updated but may have forgot to ask the registrar about changing the employment status… Regarding her employment in [named] I don’t have copies of those letters you mentioned dated 08/10/2010 and 15/01/2011 nor can I get in touch with the company as I think they are closed. But what I can see from your letter it could be a clerical mistake… About her tax credit certificate received at [number/named] Drive, we moved from that address but our friends we were sharing the house with were still living there and passed on the letter to her. I think she did not change her address with Revenue at that time and did that later… About tenancy agreement and for [number/named] Road and 2 letters from [named], we might have signed the lease on 31/05/2010 and moved next day on 01/06/2010, which is normal. That could be verified with [named] letting agents.”

48. The applicant, for whatever reason, chose not to contact the letting agent with a view to verifying matters and it is not suggested that the Minister was under an obligation to do so.

First instance decision

49. By letter dated 22 January 2019, the Minister informed the applicant inter alia that: “the Minister is satisfied that your marriage is one of convenience, contracted for the sole purpose of obtaining a derived right of free movement and residence under EU law as a spouse who would not otherwise have such a right” (the “first instance decision”).

50. At para. 25 of the applicant’s grounding affidavit he makes inter alia the following averments in relation to the first instance decision:

“I tried to address the Minister’s concerns in as honest and fulsome a way as I could while struggling somewhat to comprehend how typographical and spelling mistakes in letters which I submitted almost ten years previously could render my marriage one of convenience…”

51. The foregoing is certainly not an accurate characterisation of the basis for the Minister’s first instance decision. It is perfectly clear from the contents of the 22 January 2019 letter that the basis for the Minister’s decision went well beyond inconsistencies in documentation. Rather, the Minister clearly took the view that there was insufficient evidence of a meaningful relationship in the context of the Minister’s consideration of a range of matters specified in Regulation 28(5)(b). This is readily illustrated by the following extracts from the first instance decision:

“…This would suggest that approximately three months after the EU citizen entered the State you and [Ms. V] decided to marry. This would raise concerns regarding your relationship, given the short time between [Ms. V]’s entry into the State, your getting married and your submission of her residence application.”;

“Information available to the Minister indicates that the EU citizen was employed for 35 weeks in 2010. No employment record exists for the EU citizen in 2011.”;

“On 20/04/2016 you submitted an application based on your divorce to [Ms. V]… this application was refused on the 20/02/2017 as you could not provide evidence of the EU citizen exercising her EU Treaty Rights in the State after 2011.”;

“On this application form you state that the EU citizen left the State sometime in June 2013. On the court ruling submitted it is stated that the relationship terminated as an unspecified date in 2012. This would indicate approximately eight months after you were approved by this office you and the EU citizen ceased to be in a relationship. This is of concern to the Minister regarding the validity of your relationship with the EU citizen.”;

“You claim that you met the EU citizen in October or November in 2009. You have not provided evidence of this statement. It is not credible that the EU citizen was residing in the State for approximately four months before she applied for a PPS number does not have access to employment and State services. As stated above information available to the Minister indicates that [Ms. V] obtained a PPS number on the 26/02/2010. The Minister is satisfied that the EU citizen first entered in the State on or shortly before the date on which her PPS number was allocated. You state that you began residing with the EU citizen in March 2010. This would indicate that the EU citizen began residing with you just days after she entered the State.”;

“You claim that you did not inform this office of a change in your circumstances as required as you were unaware of the Regulations and that you knew people residing in your previous residence who would forward your post. It is noted that on at least six occasions between 02/11/2010 and 05/09/2016 you were informed of your obligation to advise this office of a change in your circumstances.”;

“You stated that the EU citizen had a child that would visit for short periods on 2011. It is noted you have not provided evidence of this statement. You further state that the EU citizen ‘spent more time in Estonia than in Ireland’ in 2012. However, you state that the EU citizen was last in the State in June 2013 as far as you are aware. As previously stated on the Court Ruling submitted it is stated that the relationship terminated at an unspecified date in 2012.”;

“You state that some documentation you have submitted hold clerical errors on them. It is not feasible that there would be clerical errors on documentation relating to the employment, residence and educational enrolment of the EU citizen in the State.”

52. Consistent with fair procedures, the first instance decision made clear that if the applicant felt an error in fact or in law had been made, he “may request a review under Regulation 25 of the Regulations” which request should contain the details set out in form ‘EU4’.

53. On 1 February 2019, the applicant wrote to the Minister stating inter alia:

“I would like to state that I do not agree with your decision and wished to contest that as my marriage with [Ms. V] was genuine and we had a loving relationship while we were together”;

“As I said in my last letter that I do not have any documentary records relating to my exwife because of the reasons I mentioned…”;

“Most of the errors you pointed out in your previous letter could have been clarified and rectified if those were highlighted at the time of submission in 2010 and 2011…”;

“… it seems unfair that your office revoke my stamp in 2019 based on the same information and documents that you had at the time of approval in 2011. Especially when we are not together anymore and I can’t access [Ms.V]’s personal records”;

“There is no contradiction, as I mentioned in my last letter our relationship deteriorated in 2012, also [Ms. V] was last here in 2013.”

Review request

54. The applicant requested a review by completing a Form EU4 on 26 June 2019 and he signed the relevant data protection notice on 3 July 2019.

Additional information and documentation

55. On 5 July 2019, the Minister acknowledged receipt of the review request and, from the prospective of fair procedures, informed the applicant in writing of the following:

“Your review will be carried out under the provisions of Regulation 25 of these Regulations.

When examining your review application, the Review Officer will have regard to all of the documentation and information available to the decision-maker at first instance as well as any additional documentation and information contained in your application for a review.

The Review Officer may then confirm the decision on the same or other grounds as the initial decision maker or set aside the initial decision and substitute his or her determination.

Documentation Please do not submit documentation that you previously submitted in support of your initial application unless requested to do so, as this may lead to a delay in processing your application. Those documents are held on your original file, and they will be examined by the Review Officer when making the Review Decision. Any copy documentation submitted is retained on file.

Documentation submitted should be photocopies unless original documentation is specifically requested. Any documents that are not in English must be accompanied by a certified translation.

Notice: you should be aware that the onus is on you, the applicant, to ensure that any documentation, information or relevant facts that you wish to have considered are contained in your application for a review of your first instance decision...” (emphasis added).

56. The applicants form ‘EU4’ contained no additional information or documentation. In circumstances where the ‘EU4’ identified the applicant’s representative, the Minister’s 5 July 2019 letter concluded by stating inter alia:

“I note from your form EU4 application form that you nominated Migration Law Chambers as your representative in dealing with this office in connection to your review application.

However, it does not appear that Migration Law Chambers are registered to act as solicitors on behalf of clients in the Republic of Ireland. In this regard, please note that it is policy of this office to deal directly only with those representatives who are either solicitors currently registered with the Law Society of Ireland or non-governmental organisations or advocacy groups whose representations have been established over a number of years.

All other individuals or organisations are, for the purpose of immigration applications, regarded as ‘third parties’ and as such are subject to the provisions of Irish data protection legislation, which precludes the disclosure of information about an individual case to a third party. As a result of this, any queries arising from your review application will be addressed to you directly by this office. Migration Law Chambers have been informed by our position in this regard.”

Submissions on behalf of the applicant

57. On 12 November, 2019, Migration Law Chambers (“MLC”) made written submissions to the Minister on behalf of the applicant. Even though, in the manner presently examined, certain legal submissions were made, it is common case that MLC is not a firm of solicitors. It is also fair to say that the focus of the 12 November 2019 submissions was on the discrepancies highlighted by the Minister in respect of documentation submitted by the applicant in 2010.

No additional information or documentation concerning the marriage

58. Despite the fact that the applicant was ‘full square’ on notice of the importance of providing all relevant information and documentation, no further details were provided regarding the marriage in question. To illustrate the approach taken in the 12 November 2019 submissions, the following comprise certain extracts:

“We would like to submit that the Minister has not produced evidence to contradict the submissions made in this regard. The Minister has not provided any details on which he is relying upon to conclude that our client has provided misleading information to the Minister and why his permission is being revoked in this regard.” (page 1 of 12);

“We also note that the Minister has mainly relied on assumptions regarding his findings in the case of our client. The Minister failed to provide any documentary evidence to support his assumption.

We have been instructed by our client that the matter being in question is around a decade ago, further the client and EU citizen are divorced now, therefore no formal contact exists between them. The client has further informed us that her (sic) ex-wife has informed him while in their rare contact that she does not reside in the State anymore. Therefore it is now harder for our client to get all the documentation for those previous years and especially for those documents which do not belong to him directly. The client has further advised us that he would try to contact her (sic) ex-wife once again and will try to get the tickets/boarding pass for her (sic) ex-wife EU national for the confirmation of date of entry into the State. The client has also informed us that he has already tried to contact with [Ms. V] in past through friend but she refused to get into contact again or provide any sort of information. We hereby submit that it is quite understandable under above said scenarios that it is beyond the control of our client to collect such information although he is willing to provide all the information required”. (page 2 of 12);

“…the Minister has not properly considered the submission of client which he sent earlier in which he informed the Minister that he met the EU citizen in around Oct/Nov of 2009, therefore the suggestion of the Minister that the couple decided to get marry (sic) approximately three months after the EU citizen entered the State is not correct. Further the matter of getting married is entirely up to the adult parties involved and in this case both decided to get marry (sic) on their own free will. The Minister also failed in pointing out specifically that why he thinks that let’s say a relationship of three months cannot lead to marriage.” (page 3 of 12);

“We have been instructed by our client that the clerical mistakes were made from the side of [Ms. V]’s employer and they do not have anything to do with this. There was no bad intention on the part of the client. The Minister did not raise any objection the time of previous application in 2010; if this issue could have risen at that time then our client would be in better position to clarify this matter from the EU citizen’s employers. Those were just clerical mistakes with no intentions of any ill gains, which in reality no advantage could have been taken by providing such information to the Minister.” (page 3 of 12); “We kindly submit that the Minister has not provided any credible documentary evidence for his assumption that the employment with [named] was contrived in order to facilitate our client’s application. The discrepancies from the employer side has nothing to do with the client, therefore it would be unfair to penalise someone for the mistake of someone else.” (page 4 of 12);

“Regarding the limited earnings of the EU citizen we have been advised by the client that his ex-wife has been working part time for all these years and he has been working as well therefore the family income was sufficient for them for their livings.” (page 4 of 12);

“We would like to submit that this was only another clerical mistake by the [named] Institute. Regarding the attendance of this course, the client has advised us that he would try to get this document from his ex-wife as it’s understandable that this document does not belong to the applicant but his ex-wife therefore she took all her paperwork with her.” (page 5 of 12);

“We hereby kindly submit that the Minister could have acted reasonably and he should have contacted the landlord to clarify the matter with the dates.” (page 5 of 12);

“We would like to draw the attention of the Minister to the fact that it is quite common that these type of mistakes may occur…” (page 6 of 12);

“The correct procedure that should have been adopted by the Minister is to check the authenticity of the documents but the Minister has failed to provide any effort made in this regards. The Minister opted to act on assumptions rather than attempting to pursue right procedures for the authentication of the documents. Our client maintains his position that he never submitted any false documents and never provided any misleading information to the Minister”. (page 6 of 12);

“We have been instructed by our client that in 2016 he applied for the retention of his rights and they were already separated and divorced therefore he could provide all the documentation he could have (sic) in his custody. Some of the documents which belonged to his ex-wife were not available to him because EU citizen took these documents with her” (page 7 of 12);

“We have been instructed by our client that he had no exact idea that he need to inform the Minister regarding the change of his address. He had no bad intentions by hiding his residential address from the Minister as actually in his application of 2016 he informed the Minister about his new address at that time” (page 7 of 12);

“We have been instructed by our client that he has been providing all relevant information and documents he could provide to the Minister in a truthful manner.” (page 8 of 12);

“We have been informed by the client that he met in 2009 and it has been nearly 10 years already therefore it is almost impossible for anyone to retrieve any sort of record. He has already changed his Mobile phone. Before he has been using pre-paid mobile phone number and he had tried his best to find call history and text messages history from that mobile number but he could not. Further the chat’s app like whatsApp and viber etc. were not very popular at that time in 2009.” (page 9 of 12);

“The client has already provided letter from the [named] in his previous application confirming that the employment started before 01st of July, 2010. As the business is closed now therefore the matter could have taken arisen (sic) earlier than it was possible for our clients to resolve this matter from the Employer’s Accountant.” (page 9 of 12);

“This is right that the Minister through his correspondence letter has been informing with obligation of reporting but the clients normally do not read the letter thoroughly and further some Minister’s letter do not explicitly describe that what does it (sic) mean a change of circumstances…” (page 9 of 12);

“We have been instructed by our clients that once again the Minister is asking for the record in the year 2011, at this moment he could not find further the client has instructed us that he had no idea that we would be asked to provide these types of evidences after these many years, otherwise we would have keep the record safe. Regarding the EU citizen time spent in Estonia, the client has admitted that the last submission made from him personally. The client in his last correspondence tried to mention that from the year 2012 she started spending more time in Estonia as compared to her short holiday visits to Estonia in preceding years. Regarding the child of EU citizen, our client has already submitted photographs of the child while he visited the Republic of Ireland.” (page 10 of 12);

“We refer the Minister to the judgment of Mr. Justice McDermott In The Matter of T.A.R. and I.H. [2014] IEHC 385, judgment delivered on the 30 th July, 2014. That case involved applicants who had previously applied for visitor visas for family members. The visa applications were refused and the challenge before the court related to the contents of the refusals. The judgment is relevant in that it refers to the need for decision-makers to provide decisions to applicants that are clear and contain sufficient information so that the applicant can know why the application has been refused and what steps the applicant will need to take in order to successfully appeal or challenge the original refusal decision.” (Page 10 of 12);

“It is difficult to see how the review process is adequate, given the Minister is not placed under an obligation to justify a refusal decision made, especially in the circumstances as outlined herein, where our client cannot possibly be said to know exactly why his original application has been refused. It follows then, as per Mr. Justice McDermott’s judgment, that our client cannot know what additional material he could or should submit to the Minister as part of the review process and this is in circumstances where the Minister does not appear to be under any obligation to justify the decision made.” (Page 11 of 12).

“This situation can be contrasted with that pertaining for social welfare appeals. The process there involves both parties to an appeal that is the appellant and the respondent Department of Social Protection, appearing before, or making written submissions to an independent appeals body. Both sides are aware therefore, in advance of the appeal hearing, of the arguments being made and the independent appeals officer is called upon to adjudicate between those two sides. That is not the situation that applies to the Minister’s review process, where the Minister acts as the reviewer in respect of his own decisions and does not place himself under any obligation or onus to justify a decision that has been made. An appellant, therefore, is required to make submissions to the Minister, and identify the grounds on which the review is based, on matters where the Minister is not required to make any response.” (emphasis in original) (Page 12 of 12).

59. By letter dated 17 May 2021, the Minister upheld the first instance decision that the applicant had contracted a marriage of convenience. This was the subject of judicial review proceedings which were compromised.

60. A further decision issued, on 19 May 2022, which was also the subject of an application for judicial review, which was compromised.

The decision

61. On 12 December 2023 the Minister issued the decision which is the subject of the challenge in the present proceedings. The decision ran to 8 pages and set out, in detail, the reasons for affirming the first instance decision of 22 January 2019. The decision accurately described the information, documentation, and submissions put forward by or on behalf of the applicant. Whilst the decision did not make specific reference to s. 28(5)(b) as opposed to Regulation 28, it is clear from the substance of the decision that it was based on the Minister’s consideration of a range of factors set out in Regulation 28(5)(b).

Regulation 28(5)(b)(ii)

62. Recalling that Regulation 28(5)(b)(ii) concerns: “Whether the parties have been residing together as husband and wife, and, if so, the length of time during which they have so resided”, the Minister’s decision stated inter alia:

“… approximately one year after you were granted a residence card you and the EU citizen ceased to be in a relationship.” (pg. 4 of 8);

“… you failed to inform this office of the change in your circumstances, that being of the demise of your marriage back around 2012 and also of the EU citizen’s asserted departure from the State in June 2013 as is required under Regulation 11(2) of the Regulations.”

(pg. 4 of 8);

“… while you maintain you met the EU citizen in October/November 2009, you have not provided information or evidence with regard to when she first came to the State. It is not credible that the EU citizen was residing in the State for approximately four months before she applied for a PPS number, thus not have access to employment and State service.”

(pg. 4 of 8);

“… information available to the Minister indicates that [Ms. V] obtained a PPS number on the 26/02/201. In the absence of any documentation or information evidencing the EU citizen’s presence in the State prior to this date, the Minister is satisfied that the EU citizen entered the State on or shortly before the date in which she obtained her PPSN.” (pg. 4 of 8);

“… you state that you began residing with the EU citizen in March 2010. This would indicate that the EU citizen began residing with you just days after she entered the State.”

(pg. 4 of 8);

“… you were required to submit an intention to marry no later than 30/05/2010 only 3 months after the Union citizen had apparently first entered the State and met you” (pg. 4 of 8);

“The accelerated nature of your relationship and decision to marry is of some concern – it appears that you met, moved in together, and married each other within a period of just six months.” (pg. 5 of 8);

“There is little information or documentation on file in respect of your relationship with the Union citizen in this case.” (pg. 5 of 8);

“You have not provided any verifiable evidence to substantiate that you were ever in a genuine relationship…” (pg. 5 of 8);

“You informed that the EU citizen had a child that would visit for short periods in 2011. It is noted you have not provided evidence of this statement. You further state that the EU citizen ‘spent more time in Estonia than Ireland’ in 2012” (pg. 7 of 8);

“… on the Court Ruling it is stated that the relationship terminated at an unspecified date in 2012.” (pg. 7 of 8);

Regulation 28(5)(b)(iii)

63. Recalling that Regulation 28(5)(b)(iii) concerns: “the extent to which the parties have been sharing income and outgoings” the decision stated inter alia:

“… there is nothing to suggest that you as a couple made any financial commitments to each other, had any joint assets or liabilities or travelled together” (pg. 5 of 8).

Regulation 28(5)(b)(iv)

64. Whereas Regulation 28(5)(b)(iv) concerns: “the extent to which the parties have been dealing with other organs of the State or organs of any other state as a married couple”, the

decision stated inter alia:

“There is little information or documentation on file in respect of your relationship with the Union citizen in this case” (pg. 5 of 8);

“Information available to the Minister for the Department of Social Protection informs that the EU citizen has a limited employment history in the State” (pg. 6 of 8);

“It should also be noted that the EU citizen has not made any claims for State benefits.”

(pg. 7 of 8).

Regulation 28(5)(b)(v)

65. Recalling that Regulation 28(5)(b)(v) concerns: “the nature of the relationship between the parties prior to the marriage” the decision states inter alia:

“There is little information or documentation on file in respect of your relationship with the Union citizen in this case. That is to say, there is nothing to suggest that you as a couple made any financial commitments to each other, had any joint assets or liabilities or travelled together. Nor is there any useful information or documentation on file in respect of your relationship prior to your marriage or, indeed, after your marriage” (pg. 5 of 8).

“You have not provided any verifiable evidence to substantiate that you were ever in a genuine relationship and it is not credible that the breakdown of the marriage would create a situation where you were unable to provide any evidence of a relationship to span in excess of 2 years” (pg. 5 of 8).

Regulation 28(5)(b)(ix)

66. Bearing in mind that Regulation 28(5)(b)(ix) concerns: “whether the parties have a continuing commitment to mutual emotional and financial support” the decision states inter alia:

“There is little information or documentation on file in respect of your relationship with the Union citizen in this case. That is to say, there is nothing to suggest that you as a couple made any financial commitments to each other…” (pg. 5 of 8);

“You submitted an application for permission to remain in the State on the basis of parentage of an Irish citizen child on 16/11/2016, the child was born on 02/10/2016.” (pg.

3 of 8).

67. The decision also quoted as follows from the applicant’s letter, dated 20 December 2017, regarding his now wife and child:

“When she got her visa I offered her to stay at the flat I am living in. She agreed and moved in with me in Aug 2015. We fell in love and still live together as a couple. We found out in Dec 2015 that [Ms. M] was pregnant, we were both really happy and I started supporting her fully financially and still do.” (pg. 3 of 5).

Regulation 28(5)(b)(xii)

68. Whereas Regulation 28(5)(b)(xii) concerns: “the immigration status of the parties in the State or in any other state” the decision stated inter alia:

“… your immigration position in Ireland was precarious in Ireland when you decided to marry” (pg. 5 of 8).

Regulation 28(5)(b)(xiv)

69. Recalling that Regulation 28(5)(b)(xiv) concerns: “any other matters which appear to the Minister to raise reasonable grounds for considering the marriage to be a marriage of convenience” the decision stated inter alia:

“It is noted that you failed to inform this office of the change in your circumstances, that being of the demise of your marriage back around 2012 and also of the EU citizen’s asserted departure from the State in June 2013…” (pg. 4 of 8);

“There are numerous inconsistencies within the documentation submitted and it is noted that while you have acknowledged these inconsistencies, you dismissed these contradictions as clerical errors. I have fully considered your explanations with regard to the discrepancies and inconsistencies regarding your asserted residence in the State however, I am not satisfied that these explanations are adequate to dismiss the Ministers concerns with regard to the authenticity of these documents” (pg. 5 of 8);

“It is considered that you submitted and sought to rely upon information or documentation that you knew to be misleading as to a material fact in order to obtain a derived right of free movement and residence under EU law to which you would not otherwise be entitled”

(pg. 6 of 8);

“… there are many inconsistencies contained within the documentation submitted to evidence the EU citizen’s employment in the State” (pg. 6 of 8);

“A P60 dated 15/01/2011 for year ending 2009, employer name [named] was also submitted to evidence the EU citizen’s employment. This document also declares the commencement date of employment as 01/05/2010. It is unsighted as to how a genuine P60 could be generated when the EU citizen did not obtain her PPPN from the DSP until 26/02/2010” (pg. 6 of 8);

“It is not credible to believe that an adult could reside at subsistence level in this State on such minimal earnings. It should also be noted that the EU citizen has not made any claims for State benefits.” (pg. 7 of 8).

70. The Minister considered all the information, documentation and submissions made by or on behalf of the respondent. This is clear from the face of the decision which states inter alia:

“Having considered all of the above documentation, information, and submissions, the Minister is not satisfied that the EU citizen in this case had been exercising her EU Treaty Rights in the State.” (pg. 7 of 8);

“Having considered all of the information, documentation and submissions on all of your files, the Minister is not persuaded that the decision of 22/01/2019 should be overturned.”

(pg. 7 of 8).

71. Recalling the principles set out earlier, there is a presumption that material has been considered if the decision says so (per Hardiman J. in GK v Minister for Justice, Equality and Law Reform [2002] 2 I.R. 418, [2002] 1 ILRM 401).

72. For the reasons set out in the decision, the Minister was satisfied that the applicant submitted and sought to rely upon documentation or information which he knew to be misleading in order to obtain a derived right of free movement and residence under EU law to which he was not otherwise entitled, and the Minister was satisfied that the applicant’s marriage to Ms. V was one of convenience in accordance with Regulation 28, conducted in an attempt to obtain an immigration permission to which the applicant would not otherwise be entitled.

73. The final page of the decision made clear that, “whilst the Minister affirms the finding of 22/01/2019 in relation to Regulation 27 and 28 of the Regulations” the decision would not apply retrospectively in relation to the applicant’s residence permission.

74. Whilst nothing turns on it for the purposes of this judgment, it would appear that the Minister’s decisions of 17 May 2021 and 19 May 2022, respectively (which were the subject of compromised judicial review applications) deemed the applicant’s 19 April 2011 residence permission void ab initio.

Due process and fair procedures

75. It is common case that this was a decision within the Minister’s power to make. The facts which emerge from a consideration of the evidence before this Court safely allow me to say that the applicant was afforded due process. Bearing in mind that the burden of proof in judicial review rests on the applicant, I take the view that the applicant has fallen very well short of establishing any breach of fair procedures. In my view, the following passage from the decision of Mr. Justice Ferriter in SK v Minister for Justice [2022] IEHC 591 applies to the process in the present case:

“…the Minister, in her letter… to the first applicant, squarely put forward a concern that the marriage was one of convenience, and the basis for that concern, and invited the first applicant to address that concern. Having considered the submissions received, the

Minister through an official then delivered a decision determining that the marriage was one of convenience and setting out a reasoned basis as to why that was said to be so… Both the first instance decision and the decision following review involved the Minister seeking to discharge the burden of proof on her and being satisfied on the facts that such burden was met and I see no error of law in that approach.” (para. 25).

76. A consideration of the facts entirely undermine the assertion that the Minister arrived at a finding that the marriage in question was one of convenience based on matters of a circumstantial or peripheral nature. Rather, the Minister engaged fully with all information, documentation and submissions and came to a decision which was based on a range of factors identified in Regulation 28(5)(b). Nor is there anything in the present case to suggest that the presumption in “GK v Minister for Justice” should be displaced.

Sufficiently rigorous

77. Insofar as the applicant relies on the decision in RA v Minister for Justice [2022] IEHC 378 (“RA”) Mr. Justice Ferriter addressed (at para. 66 of his judgment) the approach to a marriage of convenience finding:

“66. While accepting that the decision-maker should not be under an undue onus of proof, in light of the gravity of the consequences of a determination pursuant to the provisions of the 2015 Regulations that the marriage is one of convenience, or that a person has otherwise obtained EU family right benefits by fraud, it is important that fair procedures are properly adhered to and that the decision-making process is sufficiently rigorous to ensure that an adverse finding is arrived at only following a careful evaluation of all of the evidence and submissions put before the decision-maker. The requirement for such an approach is evident in the authorities cited earlier in this judgment.”

78. In my view the foregoing occurred in the present case. The applicant has neither established that “the decision-making process lacked the requisite degree of rigor”, nor has the applicant established that “there was not a sufficiently careful evaluation of all the evidence” (see para. 33 of the applicants written submissions). It should also be said that the facts in RA are materially different to those in the present case, as is the perfectly clear from the judgment including:

“The applicant then submitted material in response to this letter, including photographs of himself and MD, and postcards between them. During the course of the process leading to the review decision, the applicant submitted a significant amount of material evidencing their living together and their sharing of household and utility bills…”

79. The forgoing is in stark contrast to the dearth of information and documentation provided by the applicant in the present case. Furthermore, and wholly unlike the present case, in RA the learned judge found that the decision involved ‘circular’ reasoning i.e. the finding that the applicant in RA relied on false or misleading documentation or information “…appeared to be premised on a finding (not previously made against the applicant) that the marriage was one of convenience and that therefore any documentation referencing the fact of the marriage was fraudulent” (see para. 68 of the judgement of Ferriter J).

80. Furthermore, the learned judge went on to find that the decision in RA was vitiated by a failure of the decision-maker to properly engage with the evidence and submissions advanced. In the manner explained at para. 70 in RA, the decision-maker was incorrect to find that there was nothing to suggest that the parties had any joint liabilities. Moreover, the finding that there was nothing to suggest that the parties had lived together for any significant length of time in the State was “wholly at odds with the evidence before the decision-maker of their cohabitation for some two and a half years”. Nothing of the sort arises in the present case.

81. In addition, Ferriter J. found that there was, in fact, information provided in respect of the relationship both prior to and after the marriage, whereas the decision stated the contrary. Again, this is utterly different to the present case.

82. In RA Ferriter J. found on the facts that “there was a failure to properly engage with the evidence and submissions advanced when considering the factors which the Minister is obliged to have regard to in determining whether a marriage is one of convenience, as set out [in] Regulation 28(5) of the 2015 Regulations”. In the present case the applicant has established no such failure.

83. In short, despite the sophistication of the submissions made by his counsel, reliance on RA cannot avail the applicant, in my view and the applicant has not established that the decision making process lacked sufficient rigour or was vitiated by any error.

Invidious position

84. During the course of oral submissions, counsel for the applicant also asserted that his client “was placed in an invidious position by having to defend the marriage nine years later, in 2019”. With respect, this submission seems to me to ignore the acts and omissions of the applicant. As to omissions, it is not in dispute that the relationship ended in 2012, yet the applicant chose not to inform the Minister of that crucial fact at the time. Nor did he inform the Minister when Ms. V left the State, permanently, in 2013. The applicant did not advise the Minister of the divorce proceedings, commenced in 2014. Nor did he update the Minister on the granting of a divorce by the Estonian courts, in 2015. Similarly, the applicant did not advise the Minister, at the time, of his new relationship with a lady who would become his wife or of the awaited birth of their child. In short, four years elapsed before the applicant chose to update the Minister, despite his obligations to do so. When it eventually came, the update was by means of the applicant’s 18 April 2016 request for retention of his residence card in a personal capacity, which application was refused on 20 February 2017. Turning to the applicant’s acts, it will be recalled that the applicant chose to dispose of records concerning his ex-wife, following the refusal of the said application in 2017. The applicant put this as follows in his response to the Minister’s 6 December 2018 fair procedures letter: “as my EU Treaty Rights application was refused… I did not feel the need to keep records regarding my ex-wife”. The applicant did not point to any legal provision or principle to the effect that it was illegitimate for the Minister to raise concerns, in December 2018, regarding the marriage contracted in August 2010. Leaving that aside, if the applicant was in an “invidious position”, the facts in this case suggest that this was of his own making. Later in this judgment I will return to the lapse of time issue with reference to relevant authority.

85. Insofar as the applicant seeks to rely on Saneechur v The Minister for Justice and Equality [2021] IEHC 356, the facts are materially different to those in the present case. At para. 5 of the judgment in Saneechur, Mr. Justice Barrett stated that: “5. An error on a payslip could not, by itself, reasonably ground the serious finding that the applicant’s application was fraudulent”. There is simply no question of the decision in the present case having been grounded on a single error in a document. The starkly different facts are also illustrated by para. 7 of the learned judge’s decision in Saneechur:

“7. Why would two Irish commercial trading entities between them continuously pay monies into a man’s Irish bank account from May 2016 onwards? The overwhelmingly likely explanation is that he was, as claimed, working (and living) here in Ireland.”

86. At para. 19 in Saneechur, Mr. Justice Barrett observed inter alia that: “an employee is not his employer’s keeper; if an employer errs in what it states in a payslip then, all else being equal, that is not something that an employee can necessarily be expected to explain away”. Two comments seem appropriate. First, the decision in the present case certainly did not hinge on one or a small number of mistakes in a payslip. Second, quite apart from documentary inconsistencies, the decision rested on a range of material factors which the Minister had regard to, consistent with Regulation 28(5)(b).

87. Saneechur makes clear that where the Minister makes a finding of fraud the assessment must be sufficiently rigorous and (per para. 16): “the reviewing court must be satisfied that a factual finding has a sufficiently solid evidential base”. On the facts in Saneechur, the foregoing was lacking. However, the applicant in the present case has certainly not demonstrated that the

decision under challenge was made without a sufficiently careful evaluation of the evidence, or by means of a process lacking sufficient rigor. On the contrary, it is clear from the face of the Minister’s decision in this case that it had - to borrow from Saneechur - a “solid evidential base”.

88. Regarding the third aspect of the applicant’s challenge to the decision, it is submitted that the Minister lacked jurisdiction to make a marriage of convenience finding given the passage of time and the fact that the applicant was no longer seeking to exercise rights derived from the marriage in question. However, when refusing to quash a decision by the Minister made on 1 December 2021, Bolger J. stated the following at para. 40 in S.S.A. v Minster for Justice [2023] IEHC 32 (“S.S.A.”):

“The applicant contends that the Minister erred in determining that he had submitted false and misleading documentation to obtain a derived right of free movement and residence. He says that he obtained that right in January 2013 and, therefore, the Minister could not find that documentation he furnished in July 2013, which she found to have been false and misleading, could ground that conclusion. I do not agree… The applicant is not entitled to separate his conduct of July 2013 or since then from what had occurred in January 2013 so as to render the validity of his residence card forever immune from any further examination or assessment in spite of the Minister's clear statutory powers to revoke that permission in appropriate circumstances.”

89. It also seems to me that the following observations made by Ms. Justice Bolger in S.S.A. are equally relevant in the present case:

“29. The submission noted that the Minister did not seek to interview the applicant or his spouse when the application for a residence card was made and that the applicant was now, six years later, without a crucially important witness in his case. However, the applicant gave no account of any attempts he made to contact his spouse or any explanation why such contact was not possible. Neither did he give any detail about what he knew of her work arrangements during the marriage or any details or opinion of their marital relationship prior to their separation in December 2017 or January 2018. Even if he was correct in saying that his spouse was no longer available to him to give her account of the marital relationship (for reasons not cited by him), he could still have given his account of their marriage. Other than a very brief account of their lives from when his spouse stopped working sometime after the marriage (which must have been after July 2013 given that he told the Minister at that time that she was working) until they separated in December 2017 or January 2018, the applicant gave no information whatsoever about the married life he claims to have shared with his spouse for some four years...” (emphasis added).

90. In the present case, the applicant did not provide the Minister with details of any attempts to contact his former spouse in an effort to obtain any documentation or information. Nor did he contend that such contact was impossible. In fact, the written submissions made to the Minister on behalf of the applicant, dated 12 November 2019, indicated that there was contact albeit “rare” and, without being specific regarding any documentation, did not assert that it would be impossible, as opposed to “harder”, for the applicant to obtain documents. With regard to the foregoing, internal page 2 of the written submissions furnished by MLC on behalf of the applicant states inter alia: “The client has further informed us that her (sic) ex-wife has informed him while in their rare contact that she does not reside in the State anymore. Therefore it is now harder for our client to get all the documentation for those previous years and especially for those documents which do not belong to him directly” (emphasis added). In addition, and as previously noted (see para. 46 supra) the applicant chose not to give a detailed account, based on his own memory, of his relationship with his former spouse, despite being specifically invited by the respondent to do so.

91. On the question of whether the respondent had jurisdiction to make the decision impugned, the applicant places significant reliance on the decision in S v The Minister for Justice & Equality [2019] IEHC 584 (“S”) wherein Mr. Justice Barrett stated:

“the policy objective of Art.35 is clearly to stop permissions which should not be granted from being granted. Withdrawal of a review application fulfils this objective and it is not open to the Minister to subject a former applicant to a fact-finding process in respect of a withdrawn application. That is not permitted by the Citizens’ Rights Directive and is disproportionate by reference to the policy objectives of that Directive.”

92. In stark contrast to the present case, the applicant in the S case never enjoyed residence rights based on marriage to an EU citizen. Rather, his application was refused and, having sought a review, the applicant wrote the Minister to withdraw his application on the basis that his relationship with the EU national had broken down and the couple had separated. Notwithstanding the fact that Mr. S had written to withdraw his application, the Minister subsequently decided to issue a decision to refuse the application on the basis that false and misleading documentation had been furnished.

93. The facts in S are entirely different. The applicant in the present case did not withdraw a review application. It is common case that the applicant sought and was granted a 5-year residence card on the basis of his marriage to a Union citizen. In my view, there is nothing in the learned judge’s decision in S which calls into question the Minister’s jurisdiction to make the

decision under challenge in the present case. Furthermore, in A v The Minister for Justice [2022] IEHC 408 (“A”) Ms. Justice Bolger (at para. 8) stated inter alia the following:

“The Minister had, in good faith, exercised her executive discretionary power to allow the applicant to reside in the State after the breakdown of what the Minister believed and was led by the applicant to believe was a valid marriage. The Minister subsequently became aware of the applicant having misled the State into treating him as someone who had acquired legal rights by his marriage. The Minister could not be precluded from taking the applicant's fraudulent conduct into account in the exercise of her discretionary executive power simply because the Minister only appreciated the fraudulent nature of his conduct some time after he had been given a right of residence on the basis of that fraudulent conduct.”

94. The gravamen of the applicant’s submission is that because the applicant is no longer relying on residence rights derived from the marriage, the Minister has no jurisdiction to reach a finding that the marriage was one of convenience. It seems to me that the approach articulated by Bolger J. in A wholly undermines that submission.

95. Furthermore, there is nothing in the Directive or in the Regulations which limits the Minister’s jurisdiction in the manner contended for. In essence, the applicant argues that because the five-year residence permission upon which he relied has come and gone, the marriage on foot of which that permission was granted is immune from an adverse finding which, the applicant submits, amounts to an allegation of criminality under Regulation 30 of S.I. 548 of 2015. I feel bound to reject this argument. In the manner examined earlier, it was not until the expiration of the applicant’s five-year EUTR permission that he chose to inform the Minister of the breakdown of the relationship in 2012; the departure of the Union citizen from the State in 2013; the 2014 divorce application, granted in 2015; and the applicant’s relationship to another lady. This, despite the applicant’s obligation to update the Minister, an obligation he failed to discharge. Furthermore, the European Commission has published “Guidance for better transposition and application of 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”, COM (2009) 313 final. The said guidance states inter alia:

“4. ABUSE AND FRAUD Community law cannot be relied on in case of abuse. Article 35 allows Member States to take effective and necessary measures to fight against abuse and fraud in areas falling within the scope of Community law on free movement of persons by refusing, terminating or withdrawing any right conferred by the Directive in the case of abuse of rights or fraud, such as marriages of convenience. Any such measure must be proportionate and subject to the procedural safeguards provided for in the Directive.

4.4 MEASURES AND SANCTIONS AGAINST ABUSE AND FRAUD Article 35 entitles Member States to adopt the necessary measures in cases of abuse of rights or fraud. These measures can be taken at any point of time and may entail:

• the refusal to confer rights under Community law on free movement (e.g. to issue an entry visa or a residence card);

• the termination or withdrawal of rights under Community law on free movement (e.g. the decision to terminate validity of a residence card and to expel the person concerned who acquired rights by abuse or fraud.

Community law does not at present provide for any specific sanctions. Member States may take in the framework of fight against abuse or fraud. Member States may lay down sanctions under civil (eg. cancelling the effects of a proven marriage of convenience on the right of residence), administrative or criminal law (fine or imprisonment) provided these sanctions are effective, non-discriminatory and proportionate.” (emphasis added).

96. The EC (Free Movement of Persons) Regulation 2015 (S.I. No. 548/2015) include both civil and criminal sanctions. Regulation 30 of the Free Movement Regulations 2015 sets out a number of criminal offences with corresponding criminal penalty provisions. The applicant in the present proceedings was not subject to criminal prosecution and, therefore, is not liable to criminal penalties (e.g. a criminal records, fine and/or imprisonment). The only consequences of an administrative finding of a marriage of convenience, pursuant to Regulations 27 and 28 of the 2015 Regulations, is that the Minister, in making a determination of a matter relevant to those Regulations, may disregard the marriage as a factor bearing on such determination. The decision under challenge states inter alia:

“This means that you had no entitlement to derive a right of residence in the State from the outset i.e. from 19/04/2011 for the purpose of future determinations of immigration matters in the State or under the Regulations. For the sake of clarity while you had no entitlement to derive a right of residence from 1904/2011 the determination to revoke your residence card/permission from 19/04/2011 to 19/04/2016 and the temporary permissions previously held by you, has been set aside” (emphasis added).

97. The applicant suggests that “From the Minister’s perspective there seems little point” in making the marriage of convenience finding (see para. 45 of the applicant’s affidavit sworn on 6 March 2024). However, the contents of the decision itself undermine the applicant’s assertion. Furthermore, in the same affidavit, the applicant acknowledges the possible impact of the decision in “down stream immigration matters”. The applicant has certainly not established that the only purpose of the marriage of convenience finding is to impugn his character or that such a finding is futile. The finding that the marriage was one of convenience amounts to a finding of an abuse of rights – a finding which had a solid evidential basis, reached in accordance with due process and fair procedures, and within the Minister’s jurisdiction to make, having regard to the provisions of Directive 38/2004/EC, in particular Article 35.

98. The applicant does not allege either unreasonableness or irrationality, but, in oral submissions, it was contended that the decision was “disproportionate”. Leaving aside whether this is part of the pleaded case, the applicant goes no further than making a ‘bare’ assertion that the

decision was disproportionate. The applicant does not identify the basis for this assertion. The manner in which the decision is said to be disproportionate is entirely unclear. It is perfectly clear, however, that the decision-maker took account of all considerations in a process which was fair to the applicant and came to a reasoned decision, within jurisdiction. The applicant has not established a failure on the part of the Minister to consider any relevant factor. The applicant has failed to establish any deficiency in the manner in which the evaluation was carried out by the Minister. The applicant has not established “a failure on the part of the Minister to weigh competing interests in a proportionate manner” [see para. 71 of the judgment of Phelan J. in S.M.A. -v- Minister for Justice [2023] IEHC 642 (“S.M.A”)].

99. Whilst a finding of a marriage of convenience is undoubtedly a serious one, the Minister plainly carried out a balancing exercise, the outcome of which was inter alia for the decision to apply with prospective, not retrospective, effect. Further, the decision makes explicit that it does not interfere with the applicant's rights under the Constitution or Article 8 of the European Convention on Human Rights. Moreover, it was stated that in any subsequent proposed decision where such interference may arise, full and proper consideration “will be given to these rights”. It is common case that, on 3 August 2023, the applicant was granted permission to remain in the State under the ‘undocumented migrant registration scheme’ and the finding of a marriage of convenience self-evidently did not preclude the grant of such permission in the applicant’s favour. Nor does the decision preclude the applicant from applying for a certificate of naturalisation in the future, should he so wish. It also common case that the rights of the applicant’s children are not imperilled by the decision, because it is not applied with retrospective effect.

100. In my view, the applicant has not established that the impact on relevant rights went further than required to achieve the purpose of the decision. As counsel for the respondent correctly submits, the applicant says that his was not a marriage of convenience but does not say why a contrary finding would be disproportionate. Whilst reference is made in the applicant’s legal submissions to a possible refusal in the future of a taxi licence, that was never put to the Minister as something which should be taken into consideration. What Phelan J. had to say at para. 73 of her decision in S.M.A. seems to me to apply equally to the present case:

“No basis has been identified on behalf of the Applicant in submissions before the Respondent or before me for contending that a revocation of his residence permission deriving from a marriage which has been found to be non-genuine was other than a proportionate exercise of discretion. To properly ground a challenge on grounds of proportionality by way of judicial review in the circumstances of this case it would have been necessary for the Applicant to have first advanced a substantive basis for contending that revocation and disregard of previous residence on foot of it would be a disproportionate exercise of power. No case was made to this effect and no basis for such a case is discernible from the information available to the Respondent.”

101. For these reasons, even if a ‘stand-alone’ claim of disproportionality comprises an element of the applicant’s claim, it has not been established.

In summary

102. I want to record my gratitude to Mr Keogh BL (for the applicant) and to Ms McMahon BL (for the respondent) and to their respective instructing solicitors. Both sides provided detailed submissions, written and oral, which were of very considerable assistance to me in determining the matters in dispute.

103. Despite the great skill and commitment with which counsel for the applicant made submissions, the outcome must be determined by the facts in this case, considered in light of relevant legal provisions and principles. For the reasons set out in this judgment, I have come to the view that:-

(i) the applicant has failed to establish that he was not afforded due process and fair procedures, consistent with the provisions of the Directive and the 2015 Regulations;

(ii) the marriage of convenience finding was not based on circumstantial or peripheral matters; and

(iii) the Minister did not lack jurisdiction to make the decision.

The applicant has not established any entitlement to relief and his claim must be dismissed.

104. In circumstances where the respondent has been entirely successful, and in light of the provisions of s. 168 of the Legal Services Regulation Act 2015, my preliminary view is that there are no factors which would merit a departure from the ‘normal’ rule that ‘costs’ should ‘follow the event’. The parties are invited to agree and submit, within 14 days (i.e. by 5pm on Tuesday 20 May), a draft order reflecting the findings in this judgment. In default of agreement on any issue, including costs, short written submissions should be provided within a further 14 days, (i.e. by 5pm on Tuesday 3 June).