High Court refuses judicial review of Minister's revocation of residence card due to marriage of convenience and misleading information.

[2025] IEHC 356

THE HIGH COURT

JUDICIAL REVIEW

Record No. 2024/215JR

BETWEEN

SAADH MAHMUD

APPLICANT

AND

MINISTER FOR JUSTICE

RESPONDENT

JUDGMENT of Mr. Justice Barry O’Donnell delivered on the 24th day of June, 2025

INTRODUCTION

1. This judgment is concerned with an application by way of judicial review in which the applicant seeks to quash a decision by the Minister to revoke his permanent residence card pursuant to the terms of the European Communities (Free Movement of Persons) Regulations 2015 (the 2015 Regulations). The 2015 Regulations give effect to Directive 2004/38/ EC (the Directive). The Directive provides for the right of all EU citizens to move freely within the territory of the Member States, and provides for the extension of that right to family members of the EU citizen irrespective the family member’s nationality. In this case, the applicant who is a Bangladeshi citizen had obtained a residence card on the basis of his marriage to a Portuguese citizen, Ms. D.

2. As explained in more detail below, the applicant’s residence card was revoked following his disclosure that the marriage had ended and consequent inquiries by the Minister’s officials. Ultimately the Minister made two findings. First, that the applicant had submitted information and documents that he knew to be misleading in order to obtain a derived right of free movement and residence to which he was not otherwise entitled, which was stated to be an abuse of rights for the purposes of regulation 27 of the 2015 Regulations. Second, there was a finding that the marriage to Ms. D was a marriage of convenience for the purposes of regulation 28 of the 2015 Regulations.

3. For the reasons set out in this judgment, I have concluded that the application should be refused on the basis that the decision was lawful in the sense that the findings flowed cogently from the evidence that was considered and that the decision was adequately reasoned.

BACKGROUND

4. The essential facts relating to the application are taken from the grounding affidavit sworn by the applicant and from documents that were submitted to the Minister, and which were exhibited in the proceedings.

5. Briefly stated, the applicant asserted that he was born in 1986 and is a citizen of the People’s Republic of Bangladesh. The applicant first entered in the State in January 2007 on a student permission which was renewed from time to time. He met his future wife in early 2013 through a mutual friend and they developed a relationship. For cultural and religious reasons, he would not have an intimate relationship with a woman outside of marriage and, as the relationship deepened, he asked her to marry him. The marriage occurred on the 24 June 2013. In August 2013, he applied for a residence card as a qualifying family member based on marriage. That application was approved on the 22 January 2014.

6. The applicant goes on to explain that unhappy differences arose in his marriage, which became worse in 2018. He stated that Ms D. returned to Portugal on what he believed to be a temporary basis to visit her family. In late 2018, Ms. D made clear that she would not be returning to Ireland. The applicant stated that Ms. D became pregnant while in Portugal by another man and this caused the ultimate breakdown of the marriage. He stated that he instructed his solicitors to inform the Minister of his change in circumstances and to seek to regularise his position in the State. Prior to the first instance decision there was an exchange of correspondence and documents which framed the matters in dispute.

CORRESPONDENCE WITH THE MINISTER

7. The applicant’s solicitors wrote to the respondent on the 17 December 2018 seeking an alternative permission for allowing him to live and work in the State. By a separate letter dated the 18 December 2018, his solicitors wrote to the EU Treaty Rights division of the respondent informing the respondent of the breakdown of his marriage.

Applicant’s letter of the 17 December 2018

8. The letter of the 17 December 2018 sought permission to remain in the State pursuant to s. 4(1) and/or s. 4(7) of the Immigration Act 2004. The letter is relevant to this action insofar as it addresses matters relating to his relationship with Ms. D. In the part of the letter detailing family relationships within the State, the letter asserts that he remains in close contact with his brother-in-law, and notes that Ms. D had been in Ireland in July 2018 and November 2018. The applicant was under the impression that Ms. D was going to return to live in Ireland, but it became clear by December 2018 that she wished to remain in Portugal. The letter also noted that the applicant was the owner and director of certain businesses and employed nine people. The letter noted that prior to opening his own business the applicant had been employed in a hotel from 2007 to January 2015. The letter states that the applicant was capable of meeting all his own financial needs and certain accounts and evidence of earnings were attached.

9. The letter attached a large number of documents that were said to be supportive of his application. It can be noted that one of the documents attached was a letter from a firm of estate agents dated the 5 July 2018, which confirmed that the applicant and another person - not Ms. D - were renting a particular property in Waterford under an agreement which was to be in place for the next twelve months. The letter notes that the original lease commenced on the 2 February 2015. A residential tenancy agreement is exhibited which is dated the 6 June 2015 and which identifies the applicant himself as the tenant of the property.

Applicant’s letter of the 18 December 2018

10. The letter of the 18 December 2018, to the Minister’s EU Treaty Rights section, states that the solicitors had been instructed to communicate that there had been a material change in the relationship circumstances of the applicant. The description of the change in circumstances was set out as follows:- “The EU citizen herein is no longer living in Ireland. She was last here in November 2018 but Mr. Mahmud instructs that she will not be coming back to Ireland. She was in Ireland also in July 2018. She has been coming over and back but now her base is in Portugal. She has worked intermittently in Ireland but primarily was supported by Mr. Mahmud when their relationship was on good terms. She has been saying that she would move back to Ireland. They have been having an ‘on/off’ relationship for several years. The EU citizen had a new baby 3 months ago and Mr Mahmud is not the father.”

The Minister’s letter of the 15 February 2019

11. On the 15 February 2019, an official in the EU Treaty Rights section wrote to the applicant. The letter began by noting that the applicant had first entered the State on the 27 February 2007 on foot of a student visa. That visa had been renewed until the 31 January 2013. Under the legislation that applied at the time, he had exhausted his right to renew that visa in January 2013. He remained in the State without permission and then married Ms. D on the 24 June 2013. According to the letter, the application to the EU Treaty Rights division made by the applicant on the 13 August 2013 stated that Ms. D was residing in the State and exercising her rights via employment with “Assured Cleaners”. Subsequently he was granted a Stamp 4 EUFAM valid until the 21 January 2019. The letter noted that on the 20 December 2018 he submitted a request for change of status pursuant to s. 4(7) of the Immigration Act, 2004.

12. The letter goes on to state that an examination had been carried out of his wife’s activities in the State during the period of permission held by the applicant. The examination produced a concern that his wife had had a “highly limited Revenue returns recorded in respect of her which are not conducive to her habitual residence in the State”. This focussed on the extent of Ms. D’s reported income and returns and the details are set out later in the judgment.

The letter asserted:-

“Given your wifes [sic] minimal income during the aforementioned years it is not plausible that she was permanently resident here as it would not have been possible for her to survive economically with such limited means. Your incomes during the above periods are not substantial enough that you would have been in position to supplemental her income. The fact that your wife never sought access to social assistance in light of her minimal earnings is a reflective that she was not resident in this State. With regard to your request for change of status you submitted a substantial amount of documentation to it evidence that you are the director of Euro Corner Ventures Limited. It has been identified that your wife is recorded as being employed by your company for the period spanning 04/09/2017 – 15/04/2018, during which time you submitted Revenue returns for her in 2017. Despite the fact that you closed her employed on 15/04/2018, this employment was reopened on 11/01/2019, yet in your submissions in respect of your change of status request you outlined that she would not be returning to this State as she conceived a child with another person. The above scenario indicates that you submitted returns on behalf of your wife in 2017 in order to depict that she remained in this State exercising her rights as you were in a position to do so as director of the company she was employed by. Her income for 2017 is so minimal that it is not feasible that she was resident here during that time and based on the information available it is assessed that she left this State circa January 2015, just one year after you were granted stamp 4 EUFAM.”

13. The letter went on to note that Ms. D first entered the State on the 25 September 2012 and that the parties were married nine months later, indicating the maximum duration of any relationship between them prior to submitting a notice of intention to marry was six-month period. The letter noted that the “highly accelerated nature of your relationship” when considered in connection with the precarious immigration status of the applicant in the State at the time the marriage was contracted indicated that “your marriage may be one of convenience”. That concern was said to be further substantiated by the fact that the applicant’s wife’s minimal economic activity in the State was not conducive to her permanent residence here. The letter states that the time frame within which the applicant asserted that his wife left the State and he sought to change his immigration status was in the period immediately prior to the expiry of this Stamp 4 EUFAM, and as such appears more than coincidental.

14. The letter then addresses the consequences of the concerns raised by the Minister: a. The letter states that the Minister is of the opinion that the documentation provided in support of his application to evidence the residence of the applicant and his spouse in the State “is false and misleading as to a material fact”. b. The letter also notes that the Minister is of the opinion that the documentation the applicant provided to evidence the exercise of rights by his spouse in the State “are also false and misleading as to a material fact”.

15. The letter states that he knowingly submitted the documentation in order to obtain a right of residence which he otherwise would not enjoy. The letter notes that if the matters raised were determined to be the case, the Minister would proceed to revoke the applicant’s permission to remain in accordance with the provisions of regulation 27(1) of the Regulations and Article 35 of the Directive.

16. In addition, the letter noted that based on the same information “the Minister is also of the opinion 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”. Again, the letter noted that if that was determined to be the case, in accordance with regulation 28(1) of the Regulations the Minister would proceed to disregard the marriage for the purposes of the determination of this matter and that the permission held by the applicant from the 22 January 2014 on the basis of the marriage would be deemed invalid.

17. The letter afforded the applicant a period of 21 days to make representations addressing the concerns that had been raised and finished by advising that “any representations should also include a detailed immigration history if the EU citizen including dates of travel to and from the State in the period of 2012 to present 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 current permission to remain in the State should not be revoked.”

Applicant’s reply of the 30 April 2019

18. The applicant’s substantive replies and submissions were sent under cover of letter from his solicitors dated the 30 April 2019. The letter was premised on a submission that the Minister had not established reasonable grounds upon which to make a finding of marriage of convenience or to disregard the applicant’s marriage. The letter comprised factual assertions and legal submissions and noted the EU commission handbook addressing alleged marriages of convenience and its proposition that marriages which begin as genuine marriage but later descend into something that is merely a matter of form should not be considered as marriages of convenience.

19. The letter of submission is lengthy and runs to 13 pages, however much of the content of the letter is in the form of a legal argument. In terms of the pertinent facts and documents that were submitted to the Minister, the following assertions can be summarised: a. The couple met in Dublin in 2012, just after Ms D. arrived in Ireland. They dated for around nine months and married in 2013. The applicant did not dispute that the relationship progressed quickly, but his religious view was that he would not consummate a relationship outside of wedlock. b. The marriage was by civil ceremony in County Meath in June 2013. The couple were interviewed by the Civil Registration Service prior to the marriage. The marriage was attended by some friends and was followed by a meal and house party. c. The letter stated that “at the time of the marriage, they married for the normal genuine reasons that any couple get married”. The fact that the applicant’s immigration status was precarious, and that Ms. D was an EU citizen “was not the sole reason that they married.” d. The letter states that the couple first resided at specified addresses in Dublin and in February 2015 they moved to an address in Waterford. e. The parties shared income and outgoings as they were husband and wife. Ms. D often assisted her husband in the business as it was run by both of them, and that she worked as an employee also. f. The applicant’s work in his business required a considerable dedication of time which was at the expense of his wife and that the pressures for the couple were worse as they were “both foreigners” in a new country. It was stated that those pressures caused them to grow apart. g. The letter states that the parties resided together as husband and wife “on and off” up until last year (which was a reference to 2018). h. The couple had experienced marital and family difficulties. In that regard it was noted that Ms. D suffered from depression and travelled to Portugal to be with her mother for several periods of time. i. The applicant remains close to his wife’s family.

20. The letter goes on to note that they were instructed that Ms. D was now a single mother of her baby in Portugal. It asserted that she was not in a relationship with the father of the baby and the pregnancy was unexpected. The solicitors noted that they have been instructed by Ms. D that she was suffering from postnatal depression and that the couple were in contact with each other a lot over the Christmas break on Facebook Messenger.

21. With regard to Ms. D’s exercise of rights in the State, the letter states that the applicant agreed with the dates of employment of Ms. D as set out in the letter dated the 15 February 2019. The solicitors were instructed that Ms. D was only paid for the time she worked and that it was correct that her employment was closed with the company ECVL on the 15 April 2018. However, subsequent to the sending of the letter to the Minister on the 17 December 2018, the couple remained in contact with each other and were discussing divorce proceedings. The applicant agreed that his wife could work for a few weeks at his shop when she came to Ireland. She did not come to Ireland in any event and did not work and no work is recorded. According to the letter the applicant was of the view that “putting her on and off payroll was creating more work for his accountant and he put her back on the payroll so she could work for a bit while she was here”.

22. The letter requests information grounding the Minister’s queries regarding Ms. D’s income and any information available to the Minister which caused her to form the view that Ms. D left the State circa January 2015. However, the letter goes on to state that the applicant indicated that Ms. D worked some hours in the shop when she was in Ireland and other times she was supported financially by the applicant and exercised her EU Treaty Rights by residing in the State with sufficient resources. The letter then goes on to state that it is entirely lawful for a person to remain on payroll and be paid where they are placed on leave.

23. The letter of the 30 April 2019 also appended documents. This included some details of a flight taken by Ms. D to Lisbon on the 10 October 2018. In addition, there were some text messages which seem to show an intention that Ms. D. would travel from Lisbon to Dublin on the 27 November and return from Dublin to Lisbon on the 13 December 2018.

24. There were copies of WhatsApp messages which suggested some communications between the applicant and Ms. D. in November and September 2018 and January 2019, although these appear to have been presented out of chronological order and appeared quite inconclusive.

25. The applicant also enclosed a number of documents including bank statements and insurance statements directed to him, but in truth there was very little that shed light either on the nature of the marriage or on the applicant’s wife’s activities while she was in this State.

THE FIRST INSTANCE DECISION

26. On the 24 July 2019 an official in the EU Treaty Rights section wrote to the applicant. The letter noted the previous correspondence and informed the applicant that “having considered your responses in full, the Minister is satisfied that the documentation and information now available does not allay the concerns outlined in the letter of 15/02/2019. In this regard, the Minister now finds the following:”

27. The letter reiterated the factual matters that have already been set out above. The essential points made in the letter can be summarised as follows: a. The documentation provided show that the EU citizen’s arrival and marriage occurred within a limited period of time, which, in turn, seemed to be centred around the applicant’s immigration application. b. There was no detailed evidence of Ms. D’s residence or day to day living during the relevant time.

c. The applicant had not provided an explanation as to how he and the EU citizen supported themselves in the State for an extended period prior to obtaining PPSN without having access to employment or benefits. d. The short period of time between Ms. D entering the State, getting married and submitting a residence application, and its coincidence with the applicant exhausting student permissions for future residence raised concerns regarding the relationship.

28. The letter observed that, on an examination of Ms D.’s activities in the State during the relevant period, she had limited Revenue returns recorded in respect of her which “are not conducive to her habitual residence in the State”. Specifically, in 2013 she made 34 contributions earning €3,380; in 2014 she had 9 contributions earning €1,046; in 2015 she had

3 contributions earning €323; in 2016 there were no returns recorded; and, in 2017 she had 17 contributions earning €1,813.

29. The letter stated that given Ms. D’s minimal income during those years it was not plausible that she was permanently resident in the State as it would not have been possible for her to survive economically with such limited means. There was no documentary evidence to show that Ms. D was exercising her rights during that period as a person with sufficient resources. It also noted that Ms. D had never sought access to social assistance, which combined with her minimal earnings reflected that she was not a resident in the State.

30. The letter went on to note that the business records regarding the applicant’s company showed his wife as having been employed for a period spanning from September 2017 to April 2018. The records showed that Ms. D’s employment was closed on the 15 April 2018 and reopened on the 11 January 2019, despite the fact that it had already been stated to the Minister at that point that the applicant did not believe she would be returning to the State because of the birth of her child.

31. On foot of that information, the letter suggested that the applicant submitted returns on behalf of his wife in 2017 in order to depict that she remained in the State exercising her rights. However, her income for 2017 was so minimal that it was not feasible she was resident here during that time and it remained the assessment that the applicant’s wife left the State circa January 2015.

32. In summary, the letter went on to record that the Minister had concluded that: (a) the documentation provided by the applicant as evidence of the residence of him and his spouse in the State was false and misleading as to a material fact, (b) that the documents submitted to evidence the exercise of his spouse’s rights in the State were also false and misleading as to a material fact, and (c) that the applicant knowingly submitted that documentation in order to obtain a right of residence which he otherwise would not enjoy. This was deemed to constitute a fraudulent act with the meaning of the Regulations and the Directive, and the Minister decided to revoke the permission to remain in accordance with regulation 27(1) of the Regulations and Article 35 of the Directive.

33. In addition, the letter recorded that the Minister was now satisfied that the marriage contracted between the applicant and the EU citizen was one of convenience, as provided for in regulation 28(2) of the Regulations and in accordance with regulation 28(1) of the Regulations, the Minister has decided to disregard the marriage for the purposes of the determination of this matter.

APPLICATION FOR REVIEW

34. On the 8 August 2019 the applicant completed a Form EU 4, request for review of

decision. It is apparent that at that stage from both the form completed by the applicant and the attached submissions made by his solicitors, that the applicant clearly was aware of the reasons why the Minister had made the decision to revoke. This is of some significance for the argument agitated in the proceedings that the Minister had not provided adequate reasons for the decision.

35. The review form at section 6 sets out four reasons why the first instance decision was incorrect. a. The decision-maker had not considered the documentation provided. b. The decision-maker had based the decision on the lack of evidence of residence and activities prior to marriage and/or application. This documentation or lack thereof was not a relevant factor in the application for a residence card. c. The fact that the EU citizen was supported at times financially by her husband had not been considered. d. The decision-maker had erred in fact and in law in the manner in which the decision was made.

36. The review form was accompanied by a letter dated the 12 August 2019 from the solicitors acting on behalf of the applicant. The gravamen of the letter was that the Minister had not established reasonable grounds upon which to make a finding of marriage of convenience and to disregard the applicant’s marriage.

37. The letter set out that the applicant was an employer, a business owner and an integrated and important member of his local community and his dealings with State bodies had always been impeccable. The letter reiterated that the applicant had informed the Minister when he realised his marriage as no longer viable. It stated that he remained married but his relationship with the EU citizen had soured considerably. In that regard, the letter asserted that “the EU citizen has become vindictive in her behaviour”. The letter stated that while the applicant had asked for Ms. D’s co-operation, and she had agreed to provide documentation such as proofs of relationship and a sworn declaration attesting to the fact that they did have a genuine marriage, those documents have not been provided. This was attributed to the breakdown in the marriage. In addition to the legal arguments that are made in the letter, the substantive factual submissions were:- “Again, [Ms. D] has attended this office in the past in relation to family law matters. She was residing in the State and Mr Mahmud has indicated that she did travel over and back to Portugal from time to time. Mr Mahmud has provided documentation evidencint [sic] his wife’s employment and residence in Ireland since 2015. As is commonplace with a married couple, Mr Mahmud supported her financially as she was not working and her English was poor. Mr Mahmud was running the business. It is also very ordinary behaviour in Ireland that a spouse would be employed in the other spouse’s business. It is usual that a couple would share money without transferring it through bank accounts. They lived together. Her employment was genuine and effective. It is submitted that the Minister is jumping to negative conclusions without any evidence. There is no sound basis on which the Minister can properly reach such a

conclusion as set out in the decision letter.”

38. The second factual contention was:-

“Mr. Mahmud has had difficulty in communicating with his wife in recent months on foot of the allegations of the Minister for Justice. [Ms. D] had indicated that she would provide further documentation to support this application, but she has not done so to date. However, it is submitted that the burden is not upon this couple. There is no factual basis for the allegations and assertions of the Minister. Mr. Mahmud and [Ms. D] were married according to the laws of the State, there was no impediment to their marriage, the marriage did not work out and [Ms. D] decided that she wants to stay in Portugal. All this time, during the marriage, Mr. Mahmud has established his businesses and invested heavily in these.”

39. The EU Treaty Rights division acknowledged the request for review by letter dated the

14 August 2019. The letter noted that the review would be conducted under the provisions of regulation 25 of the Regulations and that the review officer would have regard to all of the documentation available to the first instance decision maker as well as any additional documentation and information contained in the application for review. The letter contains a notice that states:- “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 review of your first instance decision.”

40. In turn, on the 30 October 2019, the solicitors for the applicant submitted a declaration made by Ms. D.

41. The declaration is dated May 2019, and appears to have been signed before a solicitor/commissioner for oaths/peace commissioner in Portugal. In the declaration, Ms D. stated that she married of her own free will for genuine reasons and because she and the applicant wanted to commit to a life together. After describing the facts of the marriage ceremony, Ms D. made the following declarations:- “I lived with [the applicant] at … Clondalkin, Dublin at the time of the marriage. We then moved to … Clondalkin, Dublin from about June 2014 until 29th January 2015. We then moved to … Waterford on or about 1st February 2015. I worked in my husband’s business from time to time but I began to suffer from depression. [The applicant] works very hard, he leaves in the morning and comes back late at night. He works seven days per week. I found it difficult to cope in Ireland as I felt lonely. I travelled over and back to Portugal as it was easier for me there. I prefer to live in Portugal now. I did not partake in a marriage of convenience with [the applicant]. We married because we loved each other and intended to be together for the rest of our lives. Ultimately, the relationship failed.”

42. It took a considerable period of time to make a decision on the review, in part it appears because the period in question coincided with the Covid 19 pandemic. During the period while matters were under review the applicant received a number of temporary permissions to reside in the State.

43. On the 31 July 2023, the applicant’s solicitors wrote to the respondent informing the respondent that the marriage had been dissolved in the Circuit Court in July 2023, and enclosed proof of same. The divorce order recorded that it had been granted on consent and terms of settlement were agreed between the parties.

44. The review decision was communicated in a letter dated the 16 November 2023.

THE REVIEW DECISION

45. Having noted that the review was conducted in accordance with regulation 25 of the 2015 Regulations and the provisions of the Directive, the letter informed the applicant that the Minister had decided to uphold the revocation of the residence card/permission but in so doing decided to set aside the first instance decision and substitute an alternative determination.

46. The decision commenced by noting matters that I have summarised in chronological order:

27 February 2007: The applicant arrived in the State as a student.

25 September 2012: The applicant asserted that Ms D. arrived in the State.

24 June 2013: Marriage certificate states that the applicant and Ms D. were married in the registrar’s office in Navan. On the marriage certificate Ms D.’s occupation was listed as “of no occupation”.

13 August 2013: The applicant applied for a residence card of a family member of Ms. D.

13 January 2014: The initial application asserted that Ms D. was exercising her Treaty Rights through employment at “Assured Cleaning Services Limited”.

22 January 2014: The applicant was granted a five-year permission to remain up to the 21 January 2019.

20 December 2018: The legal representative acting on the applicant’s behalf submitted an application for permission to remain pursuant to s. 4 of the Immigration Act 2004. As part of that notification the applicant stated that Ms. D was no longer a resident in the State and that she had left the State in or around November 2018. The applicant had notified that Ms. D had given birth three months prior and he was not the father of the child, and that the marriage had broken down.

15 February 2019: The Minister notified the applicant of the proposal to revoke the residence card/permission.

3 May 2019: The Minister received representations from the solicitors acting on the applicant’s behalf, together with various documents.

22 July 2019: The Minister received further representations from the solicitors for the applicant.

24 July 2019: The applicant was notified that his permission was revoked and deemed to be invalid from the outset.

47. The letter went on to note the various additional documents and submissions that had been provided by the applicant and/or his legal representatives.

48. As part of the review analysis, the Minister reiterated that Ms. D obtained a PPS number on the 4 March 2013, and on the marriage certificate from the 24 March 2013 Ms. D was noted as of no occupation.

49. The report went on to note information from the Department of Social Protection which showed the following record of employment in the State for Ms D.:

2013: 34A contributions with income of €3,380

2014: 9A contributions with income of €1,046

2015: 3A contributions with income of €323

2016: no record

2017: 17A contributions with income of €1,813

50. The review stated that Ms. D had a minimal record of activity in the State after the applicant was granted permission to remain on the 22 January 2014. The review letter noted that the applicant had not submitted any evidence to indicate that Ms. D was residing in the State after he was granted permission to remain in the State. In that regard it was noted that the tenancy agreement for the property in Waterford dated the 9 February 2015 was in the applicant’s name only. It was noted that the declaration written by Ms. D asserted that they had moved to the address in Waterford in early February 2015, but no attestable evidence was provided to demonstrate that Ms. D resided there prior to her asserted departure from the State in 2018.

51. The report went on to state the findings. a. First, the Minister was satisfied that the applicant had submitted and sought to rely on the document earlier referred to and/or information that he knew to be misleading in order to obtain a derived right of free movement and residence under EU law to which he would not otherwise be entitled. This was found to be an abuse of rights in accordance with regulation 27 of the Regulations and on that basis the previous finding in that regard was affirmed. b. Second, it was found that the information outlined above cast serious doubt on the validity of the relationship with Ms. D. As such the Minister found that the marriage was one of convenience contracted for the sole purpose of immigration and on that basis the Minister upheld the finding that the marriage was one of convenience in accordance with regulation

28 and the determination to disregard the marriage for the purpose of determination in this matter was upheld. c. Third, although the Minister was affirming the first instance finding in relation to regulation 27 and 28 of the Regulations the Minister had decided to set aside the decision at first instance to revoke the residence card and to substitute that with the revocation in accordance with the provisions of regulation 27(1) of the Regulations and Article 35 of the Directive. d. The finding was explained in the following way towards the conclusion of the letter:- “This means that you had no entitlement to derive a right of residence in the State from the outset i.e. from 22/01/2014 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 22/1/2014 the determination to revoke your residence card/permission 22/01/2014 to 21/01/2019, and the temporary permissions previously held by you, has been set aside.”

THE PROCEEDINGS

52. The applicant applied ex parte to the High Court on the 15 February 2024 for leave to apply by way of application for judicial review, and leave was granted on the 22 April 2024. The substantive relief sought by the applicant was an order of certiorari quashing the letter of the 16 November 2023 communicating the decision pursuant to regulations 25, 27 and 28 of the 2015 Regulations that the applicant’s permanent residence card ought to be revoked.

53. The legal grounds on which the applicant was granted leave to apply for judicial review were as follows:

54. First, that the respondent acted irrationally or disproportionately in the manner in which she arrived at the impugned decision and/or took into account irrelevant factors or failed to take into account relevant factors in arriving at the impugned decision. In that regard having set out the details of the impugned decision, the assertion was:- “It is irrational for the respondent to have concluded at there was no evidence that the EU citizen resided in Ireland after 1st February 2015 in the teeth of the respondent’s own information which he relied upon from the Department of Social Protection that the EU citizen made social protection contributions in 2017 which point to her presence in the State. It is fundamentally at variance with reason and common sense for the respondent to have concluded that the applicant submitted false and misleading documentation or information without having identified which documents or information were said to be false and misleading or providing reasons for that

conclusion. The conclusion of false and misleading documentation does not flow from the premises. The respondent fell into irrationality in concluding that the applicant’s marriage was one of convenience. There is no evidence before the respondent that the marriage was one of convenience.”

55. The second ground was that the respondent failed to comply with the duty to give reasons in arriving at the decision. In that regard, the applicant made the following points: a. The respondent did not identify which documents or information was found to be misleading or false or what reason the respondent considered the documents or information to be misleading or false. b. It was impossible to know from the decision the nature of the reasons given why the respondent concluded that the applicant had submitted misleading or false documents and which documents were considered to be so. c. The reasons given in the first instance decision cannot save the impugned

decision because even though the first instance decision identified some specific documents the review decision affirmed the findings based on a fresh reasoning. d. There was a failure to give adequate reasons for the conclusion that the applicant engaged in a marriage of convenience and insofar as reasons were given they were circular and/or the reasons given were so terse that it was impossible to discern why the finding was made.

e. The respondent had failed to engage with the relevant submissions and evidence submitted by the applicant including but not limited to the statutory declaration of his former wife.

56. The respondent filed a statement of opposition on the 8 October 2024. In that document the respondent asserted that the decision made to revoke the applicant’s residence card was valid as a matter of fact and law. In relation to the allegations of irrationality the respondent asserted that: a. Having carried out a full consideration of the documentation and information the applicant furnished, the respondent’s concerns were not allayed. b. The finding that the documentation submitted by the applicant was misleading did not fly in the face of fundamental reason but flew from the evidence adduced. c. The applicant did not inform the respondent that his marriage had broken down until the 17 December 2018 which was one month prior to the expiration of his five-year residence permission. However, the records indicated that Ms. D’s economic activity in the State after the 22 January 2014 had been minimal and therefore not consistent with the genuine exercise of EU Treaty Rights. It was also asserted that the representation to the respondent that the applicant and Ms. D continued to reside together at the Waterford address from the 1 February 2015 did not appear to be the case.

57. With regard to the adequacy of reasons there was a denial of a failure to comply with the reasons obligation, and a positive assertion that clear and intelligible reasons were given for the decision. The respondent asserted that she engaged with all relevant submissions including the statutory declaration furnished by the EU citizen, for instance by noting that in her declaration Ms. D had declared that she moved to the address in Waterford on or about the

1 February 2015 and yet no attestable evidence was provided to demonstrate that she resided there prior to her asserted departure from the State in 2018.

58. The statement of opposition was verified by an affidavit of Mairead Victory, a Higher Executive Officer in the Review Unit of the EU Treaty Rights division in the respondent’s department. That affidavit was sworn on the 21 October 2024.

59. Ms. Victory recites the history of the applicant’s engagement with Immigration Services and exhibits his initial application for a residence card on the basis of his marriage which was made on the 12 August 2013. Among the documents was the marriage certificate which noted the date of marriage as the 24 June 2013; and a letter from Assured Cleaning Services Limited dated the 20 June 2013 which confirmed that the EU citizen was working part-time for Assured Cleaning Services Limited. It should be noted that the marriage certificate notes that the EU citizen was “of no occupation”.

60. There was also a letter from a letting company dated the 17 June 2013 confirming that the applicant and the EU citizen had resided at a property in Clondalkin since the 20 May 2013. There was a bill directed to both parties from June 2013 at the Clondalkin address and some extracts from what appear to be a joint current account held by the couple. The account statements show transactions between March and June 2013.

61. Ms. Victory’s affidavit goes on to note that, when the applicant was granted a residence card to remain in the State on the 22 January 2014, it was made clear that under the regulations he was obliged to advise the Minister of any change in circumstances which may affect his right to reside in the State.

62. Ms. Victory notes that following the receipt of the letter dated the 17 December 2018 from the applicant’s solicitors, the Minister thereafter had reasonable cause to commence an investigation into the circumstances which lead to the grant of the residence card to the applicant under the relevant legislation. The affidavit goes on to note the various interactions between the parties, including the findings at first instance and on review and the fact that the applicant had been granted temporary permission to reside in the State while the review was pending.

63. Before turning to the arguments that were made it would be helpful to set out certain general principles that have emerged from recent Court of Appeal decisions on similar cases.

RELEVANT PRINCIPLES

64. ZK v Minister for Justice, Ireland and The Attorney General [2023] IECA 254 addressed the procedural requirements when a residence card is revoked on the basis of a finding that a marriage was a marriage of convenience. The Court began by noting the relevant provisions in the Regulations.

65. By regulation 27(1) of the 2015 Regulations the Minister “may revoke, refuse to make or refuse to grant” a right, entitlement or status where she is concerned that it is being claimed “on the basis of fraud or abuse of rights”. An “abuse of rights” includes a marriage of convenience. Where the Minister suspects “on reasonable grounds” that a right is being claimed, or has been obtained, on the basis of fraud or an abuse of rights, then she is entitled to “make such enquiries and to obtain such information as is reasonably necessary to investigate the matter”.

66. When the Minister exercises her power under regulation 27(1), 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 twentyone 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)”

67. In making her determination of any matter relevant to the 2015 Regulations, the Minister may, pursuant to Regulation 28(1), “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”. Where the Minister, in taking into account a marriage for the purpose of making a determination of any matter relevant to the 2015 Regulations, has “reasonable grounds” for considering the marriage is a marriage of convenience, 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.”

68. The Minister is required to determine whether a marriage is one of convenience having regard to “any information furnished under these regulations” and to such of the following matters does appear to the Minister to be relevant in the circumstances:- “(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;

…

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

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

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

…

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

(x) The history of each of the parties…

(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;

…

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

69. The term “marriage of convenience” refers to a marriage contracted “for the sole purpose of obtaining an entitlement” under the Directive or the 2015 Regulations or under any measure adopted by a Member State to transpose the Directive, or under any national law concerning the entry and residence of foreign nationals.

70. At para. 148 of her judgment in Z.K., Power J. noted that, in that case, the applicant was not entitled to presume that the documentation he provided, being of such limited probative value, would be sufficient to dispel the Minister’s well-founded concerns as to the genuineness of the marriage. It should have been clear to him and to his solicitor that the state of the evidence submitted was problematic, to say the least.

71. In considering the question of whether the applicant was correct in asserting a right to an oral hearing in the context of a decision on revocation of a right of residence, the Court addressed the general nature of the inquiry conducted by the Minister. As put by Power J. at para. 160 of the judgment: “I accept that it was one of significance, in that important derived rights and benefits accrue to spouses of EU citizens who exercise their EU Treaty rights. That said, the inquiry was not a criminal investigation and ZK was not in the position of an accused person facing a prosecution such that a ‘ whole panoply of rights’ under the Constitution or Article 6 of the European Convention on Human Rights would apply. There were, of course, significant consequences for the applicant if his challenge to the proposed revocation of his residence card failed… The fact that serious consequences flow from the revocation of residence is not, in itself, a basis for contending that a person in the position of ZK is entitled, automatically, to have an oral hearing as part of the decision-making process. What is required is that the decision-making process be fair.”

161. The nature of the inquiry in this case was such that the Minister, based on well-founded suspicions that the marriage was one of convenience, was investigating whether the further information she had required from ZK was sufficient to dispel her concerns about the marriage. The onus of proving that a suspected marriage is one of convenience, rests on the national authorities. A validly married couple with the requisite evidence that an EU citizen is exercising his or her EU Treaty rights enjoys ‘the benefit of assumption’ and does not have to prove that theirs is a genuine marriage. However, where the authorities have ‘well-founded suspicions’ concerning the genuineness of a particular marriage, they are entitled to invite the couple concerned to produce further evidence or relevant documentation. At this point, the spouses have an obligation to comply with the authorities. If the evidence provided ‘dispels the concerns’ identified, then the matter can be closed. As the Handbook indicates, it can reasonably be expected that genuine couples would have such evidence available to them. If the couple fails to ‘produce evidence that would dispel the suspicions’ of the authorities, that failure can be taken into account together with all other relevant circumstances when the assessment as to the genuineness or otherwise of the marriage is being made.” [emphasis added]

72. The Court went on to consider the question of the relevant burdens involved in an exercise such as that conducted by the Minister and drew on observations made by Richards L.J. in Rosa v Home Secretary [2016] I WLR 1206. The Court noted the underlying factual situation which showed that the Minister’s suspicion was founded on several identified factors.

Those factors, together with the applicant’s precarious immigration status at the relevant time, constituted evidence that was capable of pointing to the conclusion that said case marriage was one of convenience. In those circumstances the court was satisfied that the Ministers suspicions were well founded. At that point the court noted that the following applied: “165. Once notified of the Minister's concerns as to the genuineness of the marriage, the applicant was under an obligation to comply with the Minister's request for further information. At that point, the ‘evidential burden’ shifted to ZK … to provide additional evidence that would dispel the Minister's suspicions. What he produced consisted of a typed and unsigned letter which was said to be from the couple but in which [the alleged spouse] is referred to throughout in the third person. The letter explained that he asked for international protection to ‘get a status’ and that he was ‘asked to do so’ by the Civil Registration Service. The letter set out the history of the relationship. It began on the internet and then, after ZK's arrival in Ireland, they had started dating ‘after a while’. The letter claimed that the couple had been living together before the marriage (‘not officially’) and that [the alleged spouse] had sometimes stayed with her mother. After the marriage, they started sharing bills.”

73. The Court went on to note that at the review stage, the applicant had been afforded another opportunity to provide further information to dispel the Minister’s concerns but did not do so. As the Court noted later in the judgment, the applicant had to have been fixed with an awareness of the obvious deficiencies in the evidence he submitted throughout the process in response to the Minister’s well-founded suspicions considering his account of marriage. The court noted that it was implausible that nothing else by way of documentary evidence would have been available to the EU citizen as objective verification that she and ZK lived together during the marriage and jointly administered their household. If the applicant lacked more persuasive and convincing evidence, that spoke for itself.

74. The onus was on the Minister to prove that the applicant’s marriage was one of convenience and she was obliged to ensure that fair procedures were observed before making a determination of any matter relevant to the 2015 Regulations, including one disregarding his marriage as factor bearing upon her determination. There was, nevertheless, an obligation on the applicant, where well founded suspicions arose, to dispel the Minister’s concern that the marriage was one of convenience. The court noted at para. 191:- “191. …Marriage is a serious business, entailing as it does ‘the voluntary entry into mutual personal and legal commitments’ (HAH v SAA & Ors [2017] IR

372. In determining whether the applicant's marriage was one of convenience, the Minister was permitted, under Regulation 28(5), to have regard, inter alia, to whether the couple has ‘a continuing commitment’ to mutual emotional and financial support. The Commission's Handbook points to ‘a long-term legal […] commitment’ as ‘conduct much more likely to be exhibited by genuine couples’. Having invited the applicant to provide further evidence to dispel her concerns about the genuineness of the marriage, the Minister was entitled to ‘require’ such information as was reasonably necessary to satisfy her that the marriage was not one of convenience. Such information might have included documentary proof of shared responsibility for utility bills, shared financial transactions, text or email messages or other indications of a long-term or continuing commitment (Pervaiz). Where there was a failure to provide evidence that dispelled her suspicions where such evidence could reasonably be expected to be available to genuine couples, the Minister was entitled to take that failure into account in combination with the entirety of the information collected during the process. Having failed to provide information or evidence to dispel the Minister's well-founded suspicions, he is not entitled to insist upon a right to assert, orally, what he has already submitted, in writing, nor does he have the right to be cross-examined by the decision maker.”

75. A short period after the delivery of the judgment in ZK, the Court of Appeal delivered a further judgment concerning decisions around the revocation of rights of residence on the basis of findings that a marriage of convenience had been entered into. In MH v Minister for Justice and Equality [2023] IECA 267 the court noted at para. 57: “In cases such as this one, the Minister is not engaged from the outset in an assessment of an applicant's credibility but in an assessment of the weight or probative value of the evidence he adduced (Power J., ZK, para 194). Thus, in the present case what is at issue is whether, having considered and probed all the information and evidence provided and having viewed what this appellant submitted to her, the Minister's decision that she was satisfied that the marriage was one of convenience was one which she was entitled to reach, fairly, in the absence of an oral component. This Court is not concerned with the issue of whether the marriage was or was not genuine but only whether the decision was taken fairly and in accordance with law by the Minister.”

76. Similarly, in SSA v Minister for Justice [2023] IECA 277 Meenan J. clarified the general point, as framed at para. 23 of the judgment, that although a decision must be rational and based on an analysis of the evidence, it does not follow, as the trial judge observed, that every point raised by an applicant must be addressed. The court also noted at para. 27 that it was clearly incorrect for an applicant to argue that having secured a five-year residence card on the basis of a marriage to an EU national, the Minister was precluded from revisiting the earlier acceptance of that marriage at a later stage. That finding emerged from the clear wording of Regulation 27(1) of the 2015 Regulations.

77. Finally in SK and JK v Minister for Justice [2023] IECA 309, the Court of Appeal again addressed criticisms of the Minister’s asserted failure to engage with evidence. The Court observed at para. 53: “It is necessary to clarify that a finding of a marriage of convenience made within the context of a determination under the Directive and 2015 Regulations does not constitute a general finding in respect of the ‘validity’ of a marriage, nor is it, as the appellants contend, a declaration that, effectively, the marriage is ‘invalid for all purposes’. The Supreme Court in S [S v Minister for Justice [2020] IESC 48] corrected an error on the part of the High Court as to the consequence of such a finding. In S, the Minister had determined that the applicant had entered into a marriage of convenience. That finding was never challenged by S. He did challenge a later deportation order that had been made against him, complaining that it had been made without any prior consideration of his rights under Article 8 of the European Convention on Human Rights (‘the Convention’). In the High Court, Humphreys J. found that the Civil Registration (Amendment) Act, 2014 provided that a marriage of convenience was a ‘nullity’ and that the unchallenged finding in respect of S’s marriage meant that no rights could arise out of the relationship which could then be asserted. On appeal, the High Court’s ruling was set aside.”

78. The court went on to note at para. 55:-

“55. It is clear from the judgment of the Supreme Court in S that the Minister’s competence to deem a marriage one of convenience is for the sole purpose of deciding whether the marriage should be ‘disregarded’ as a factor in deciding an application for residence. The Minister can ‘go no further’ than to ‘disregard’ or ‘ignore’ the marriage for the purpose of making such a determination. McKechnie J. was satisfied that, in S, the Minister, quite rightly, in making a finding under the 2015 Regulations, did not purport to make any consequent far-reaching decision that the marriage in question was a nullity at law.”

79. In that case, the Court noted that the applicant’s bank statements, tax certificates, letters of support, photographs and evidence of travel were submitted to allay the Minister’s concerns. However, the court noted alongside that evidence certain “objective matters” were striking, particularly certain admissions that had been made by the applicant during a GNIB interview. That factor, together with a number of other identified factors, led to a conclusion that it was well within the scope of the Minister’s discretion to afford significant weight to the objective factors when determining the application for renewal of the right of residence.

80. The court reiterated the nature of the inquiry in such a set of circumstances in the following way:- “65. As I see it, the ‘road map’ in the administrative inquiry at issue herein under the 2015 Regulations may be summarised as follows. The starting point is that an applicant enjoys the benefit of the assumption that his or hers is a genuine marriage without being obliged to prove as much. However, the Minister may have a well-founded suspicion that the marriage is one of convenience. Where this occurs, the Minister sets out her concerns, in writing, and invites an applicant to produce further information or evidence sufficient to dispel such concerns. An applicant, at this point, is obliged to cooperate with such a request for further information or, as Richards L.J. put it in Rosa v. Home Secretary [2016] 1 WLR 1206 at para. 27, ‘the evidential burden shifts to the applicant’. The Minister then considers whether the further information provided is sufficient to dispel her concerns and, if it is, the inquiry ends there. If it is not, the applicant’s failure to provide such evidence may be taken into account with all other relevant circumstances in assessing the genuineness or otherwise of the marriage.”

81. It is reasonably clear that some element of common sense or common experience can be brought to bear in this exercise, hence at para. 69 the Court noted that where there is an assertion that a couple had been cohabiting as spouses but there was nothing by way of persuasive evidence of the couple’s joint residence, this was a factor to be considered. The Minister was entitled to expect there to be evidence of a type that a genuine couple might reasonably be expected to have, such as shared utilities bills or other financial transactions to show that the marriage was a genuine one. Certainly, the court considered it would be implausible that nothing more by way of documentary evidence would have been available to the parties as objective verification of the genuine nature of their marriage during which they had, as the handbook puts it, “jointly administered their household.”

82. Similar observations about the type of information that one might expect to see within a bona fide marriage were made by Bolger J. in YMA v. Minister for Justice [2024] IEHC 58, relying on the observations of Baker J. in Pervais v Minister for Justice [2020] IESC 27.

ARGUMENTS

83. The applicant highlighted an apparent inconsistency in the Minister relying on the information from the DEASP which showed some, albeit minimal, social protection contributions up to 2017 and the finding that there was no evidence that Ms. D resided in the State after the 1 February 2015.

84. The applicant also argued that there was a “high bar” for a finding of a marriage of convenience and that the threshold had not been met in this case. The applicant argued that the Minister had focussed primarily on the question of the whether Ms. D was exercising treaty rights during her time in this State, rather than on the separate question of whether the marriage was one of convenience. In that connection, it was submitted that the Minister had predicated the finding of a marriage of convenience on the finding that the applicant had submitted false and misleading information and documents relating to the exercise of treaty rights.

85. In relation to the adequacy of reasons grounds the applicant argued that the Minister did not provide adequate reasons for the decision that the marriage was one of convenience. The applicant relied on the reasoning of Ferriter J. in RA v Minister for Justice [2022] IEHC 378, and argued that the Minister had not specifically identified specific material or information that was suggested to be false or misleading.

86. In addition, it was argued that the reasons given for the finding that the marriage was one of convenience were inadequate. The applicant argued that there was some circularity to the Minister’s reasoning as to some extent the finding on that issue appeared to be predicated on the general finding that the applicant had submitted false or misleading documents or information.

87. The Minister responded by arguing that the findings made by the Minister were reasonable in the sense that they flowed from the facts before her and were factually sustainable. In that regard, the Minister emphasised (i) the very scant documentation and material facts that had been provided by the applicant in response to the queries raised by the Minister, (ii) the information from the DEASP that Ms. D had minimal economic activity in the State during the time that she was said to have been exercising treaty rights in the State, and (iii) the very limited information and absence of corroborating evidence about the relationship between the applicant and Ms. D.

88. With regard to the reasons aground, the Minister argued that the reasons given were intelligible and sufficient.

DISCUSSION

89. I have already set out the guidance that has emerged from the consideration given to similar issues by the Court of Appeal in recent years. It is also helpful to consider the factual matters identified in the course of the process before the Minister:

• Shortly before his relationship with Ms. D, the applicant’s entitlement to remain in the State had expired.

• Ms. D obtained a PPS number in March 2013

• The applicant married Ms. D in June 2013, while he had no permission to remain in the State, and, shortly thereafter, he applied for a residence card.

• There is very little objective or independent evidence to support the contention that Ms. D was exercising her EU treaty rights in the State; and, from the available official records, there is compelling evidence that she was not engaged in economic activity to the point that she was capable of sustaining herself.

• Aside from the applicant’s assertions, there was very little, if any, objective evidence to show that he supported Ms. D financially or that they shared a household.

• Aside from inconclusive text messages, there was no evidence of an emotional relationship between Ms. D and the applicant after their marriage ceremony in June 2013. The applicant did not produce any photographs, social media information or other evidence that ordinarily would be expected in a durable emotional relationship.

• There was no objective evidence to show that Ms. D resided with the applicant at the Waterford address, and, for a period from the 1 February 2015 to July 2018, he was the only named tenant at the property.

• While Ms. D eventually provided a form of statutory declaration generally supportive of the applicant’s contentions, she did not produce any evidence to corroborate her assertions.

90. The starting point for the analysis is that, as accepted by the respondent, the Minister bears the burden of proof in respect of the issues that were raised. It was not seriously disputed by the applicant that the Minister had cogent reasons to commence her inquiries in this case and to form the provisional views relating to the exercise of treaty rights by Ms. D and the nature of the marriage between the applicant and Ms. D. That being so, the Minister correctly identified that the applicant was required to take active steps to engage meaningfully with those inquiries.

91. As occurred in SK & SJ v. Minister for Justice [2023] IECA 309, and MH v Minister for Justice [2023] IECA 267, the Minister set out her concerns and afforded the applicant an ample opportunity to address those concerns. With regard to what could be expected from the applicant, in Abbas v. Minister for Justice [2021] IECA 16 Binchy J. noted that simply asserting matters or making statements is not sufficient for an applicant, observing at para 82: “For the purpose of such applications, the [Minister] clearly requires to be provided with supporting or vouching documentation in relation to the matters asserted therein. While the statements are necessary in order to provide the [Minister] with essential background information relating to the Application, and to give a context to assist in explaining supporting or vouching documentation provided by an applicant, it is really only the latter documentation that constitutes evidence i.e. it is evidence provided in support of the factual background relied upon by an applicant in his supporting statement(s).”

92. The need for adequate supporting documentation has been emphasised by the Court of Appeal in SSA v Minister for Justice [2023] IECA 277, MH v Minister for Justice [2023] IECA 267, and by the High Court, for instance in YMA v Minister for Justice [2024] IEHC 58. In Pervais v Minister for Justice [2020] IESC 27, the Supreme Court (Baker J.) at para. 91, made clear the reason why documentation or its absence can be critically important: “It is almost inconceivable in the modern world that a couple would not have many examples which can be established by documentary proof, whether from social media, correspondence, utility bills, photographs, text or email messages, financial transactions, etc. which might establish the closeness of their interconnectedness and the nexus within which the relationship operates.”

93. What then, other than the statements made, did the applicant rely on to demonstrate that Ms D. was exercising her treaty rights and that the marriage was not one of convenience? In relation to the exercise of treaty rights and presence in the State the objective evidence available to the Minister was extremely limited. The information from the DEASP established that Ms. D had a minimal record of employment and was not receiving social protection. That information was inconsistent with the proposition that Ms. D was residing in the State and supporting herself in the period following February 2015. Likewise, there was no objective corroborating evidence to show that Ms D. was a tenant in any residence – whether with the applicant or otherwise – and the tenancy records submitted by the applicant identified only him as a tenant in the Waterford property from the 1 February 2015.

94. There was also an almost complete absence of the type of objective evidence to show that the applicant and Ms. D were in a relationship after the date of their marriage, and certainly after the 1 February 2015. When that evidence was considered in connection with the coincidence in timing between the expiration of the applicant’s permission to remain in the State after his student visa permission had run its course and the somewhat accelerated marriage to Ms. D, I do not consider that it can be argued that the Minister reached an irrational or unreasonable conclusion. The findings that Ms. D was not exercising her treaty rights in the State from the 1 February 2015 and that the marriage was one of convenience clearly were findings that were factually sustainable on the evidence available to her.

95. Likewise, I consider that the applicant has misconstrued the finding that he submitted false or misleading information or documents. The review decision makes clear what had been found: “The Minister is satisfied that you submitted and sought to rely upon the above documentation and/or information that you knew to be misleading in order to obtain a derived right of free movement and residence under EU law to which you would not otherwise be entitled”.

96. Undoubtedly, there may be situations in which it can be shown that documentary evidence has been forged or falsified, but this was not what was found by the Minister. In my view, the review decision clearly identified that the Minister had a range of concerns, and those concerns had been communicated to the applicant. The applicant had sought to allay the concerns by (a) asserting that Ms. D had been resident in the State and exercising her treaty rights in the period after the 1 February 2015, (b) asserting that the marriage was not a marriage of convenience, (c) seeking to provide information and documents to support those assertions. The documents and information did not on any objective measure allay the concerns or sufficiently corroborate the applicant’s assertions. The Minister was entitled to find that in fact the marriage was one of convenience and that Ms. D was not exercising her treaty rights in the State after the 1 February 2015. Therefore, the information and documentation submitted by the applicant to support contentions that were not borne out was found to be misleading, as it sought to persuade the Minister that certain facts were true when they were not.

97. With regard to the adequacy of reasons I do not accept that the reasoning of the Minister was unclear or incapable of being understood. The applicant was entitled to know in general terms why the decision was made and to have enough information to consider whether it was advisable to seek to review the decision, see Connelly v An Bord Pleanála [2018] IESC 31, and NECI v. The Labour Court [2021] IESC 36.

98. The Review decision can be considered in the context of the preceding correspondence and first instance decision all of which fall to be considered in light of the substantive and procedural statutory context. Viewed in that light, the applicant cannot be said to have been unaware of the issues that he needed to address and the concerns that had to be allayed. The applicant was afforded, and availed of, the opportunity to make submissions and to place before the Minister any documents or evidence that he considered supportive of his claims. Those materials were considered, the Minister formed a view, and she reached a decision. The

decision is intelligible and clear.

99. Whether the decision is considered from the point of view of reasonableness or adequacy of reasons I am not satisfied that it suffers from the type of frailties that led Ferriter

J. to the decision to quash in RA v Minister for Justice [2022] IEHC 378, which, it can be noted, was delivered prior to the decisions made by the Court of Appeal in 2023 and that have been referred to earlier. In RA the applicant responded to Ministerial concerns that he had contracted a marriage of convenience by submitting photographs, postcards, and evidence of the couple sharing household and utility bills. Ferriter J. found as follows at para. 68: “Aside from the question of the proper characterisation of the marriage, no material was pointed to which was suggested to be fraudulent or falsified of itself. This was not a case where documentation or information had been submitted which was itself false e.g. it was not a case where there was a forged marriage certificate or where material factual information (such as the residence of the Union citizen in Ireland) was deliberately misstated. Rather, the question was one of the proper characterisation of the marriage for immigration law purposes in light of facts which were largely not in dispute.”

100. For the purposes of the review element in the process, the applicant provided further material including information regarding attendance at a fertility clinic. Ferriter J. identified two main, but it seems to me related, infirmities in the review decision in that case. First, there was a circular form of reasoning: the Minster found that the applicant submitted false or misleading documents or information which was premised on an assertion that there was a marriage of convenience. However, the finding that there was a marriage of convenience for the purpose of the 2015 Regulations and Directive, was vitiated by the fact that the Minister had not engaged properly with the evidence and documents where that evidence certainly provided a basis for the applicant’s contentions and thus ought to have been engaged with and considered.

101. As set out above, the finding that the applicant submitted false and misleading information in this case flowed logically from the prior finding that the Minister was not satisfied that there was adequate evidence that Ms. D was residing and exercising her EU treaty rights in the State after the 1 February 2015. That finding was clearly sustainable. The consequent finding - that insofar as the applicant was attempting to persuade the Minister otherwise, that attempt was an attempt to mislead the Minister - flowed from the prior finding, which itself was grounded in a sufficient engagement with the objective evidence. Moreover, unlike the situation in RA there was no basis for finding that the Minister had failed to engage with the evidence and submissions from the applicant.

CONCLUSION

102. In all the premises, I am not satisfied that the applicant has persuaded the court that relief should be granted in this case. The court will make an order refusing the application for relief.

103. As the judgment is being delivered electronically my preliminary view is that the respondent should be entitled to the costs of the proceedings to be adjudicated in default of agreement. I will list the matter for final arguments on the form of the orders to be made and in relation to any issue on costs before me at 10.30am on Tuesday, the 8 July 2025.