High Court dismisses judicial review claim where alternative remedies exist for deportation challenges.

THE HIGH COURT

JUDICIAL REVIEW

[2025] IEHC 494

RECORD NO. 2024/33 JR

BETWEEN

M

APPLICANT

-AND-

THE MINISTER FOR JUSTICE

RESPONDENT

JUDGMENT of Mr. Justice Mark Heslin delivered on 12th day of September 2025

Introduction

1. In the present case, the applicant is seeking “…to prevent the Minister from exercising a means of his removal from the State which will, if put into action, be much more difficult for him to resist” (para. 27 of the applicant’s written legal submissions, dated 3 December 2024).

2. As regards his exclusion from the State, the applicant submits that “…the respondent has already decided the means she would use for that purpose is deportation” and “the Respondent has decided that the appropriate mechanism is deportation, not removal” (para. 19 of the applicant’s written legal submissions).

3. At the ex parte stage the applicant sought the following relief which is pleaded at para. (d) of their statement of grounds:

“(i) An order of certiorari quashing the Minister’s decision to refuse to consider the applicant’s application to be considered under the terms and provisions of the procedure established by the Respondents Department to deal with cases coming within the ambit of cases captured by the judgment of the CJEU in the case of Chenchooliah v. The Minister for Justice & Equality C – 94/18 – hereinafter referred to as the Chenchooliah judgment.

(ii) Further or in the alternative, an order of mandamus compelling the respondent to the (sic) consider the Applicant’s case as one falling within the ambit of the Chenchooliah judgment.

(iii) Such other declaration(s) of the legal rights and/or legal position of the applicants and/or persons similarly situated as the court considers appropriate.

(iv) An interim or interlocutory injunction or a stay restraining/prohibiting the Respondent from taking any further steps in relation to the removal of the Applicant from the State pending the termination of the within proceedings or leave to apply for same.

(v) An extension of time, should same be necessary.

(vi) An Order providing for the costs of and incidental to the within proceedings;

(viii) Such further or other Order as this Honourable Court deems fit.” (emphasis added).

4. As the applicant’s counsel made clear, very appropriately, during the hearing before me, leave was not granted to seek certiorari quashing any decision. Rather, by order made on 19 February 2024 (Hyland J.) the applicant was granted leave to seek only the reliefs set out at para. (d)(ii) to (d)(vii), on the grounds pleaded at para. (e) of the applicant’s statement of grounds.

Mandamus

5. Thus, the primary relief which the applicant has obtained leave to seek is “…an order of mandamus compelling the respondent to consider the Applicant’s case as one falling within the ambit of the Chenchooliah judgment”. An order of Mandamus compels a party to perform a legallyimposed duty and is typically sought against the respondent where the Minister has failed, or delayed unreasonably, to make a decision, which they are under a duty to make. In the manner explained in this judgment, this is not such a situation.

Chenchooliah

6. The sole authority which the applicant relies on is case C–94/18 Chenchooliah v. Minister for Justice & Equality (“Chenchooliah”). I will presently look more closely at this judgment but, to understand the nature of the applicant’s claim, it seems appropriate to attempt to summarise what was addressed and decided in Chenchooliah. The CJEU addressed the question of whether domestic law could be used to seek the removal of an individual from a Member State who had previously enjoyed rights derived under Directive 2004/38/EC (“the Citizens’ Rights Directive” or “the Directive”). The Court answered that question in the negative, deciding that domestic law cannot be used to remove such an individual unless their current situation falls outside the scope of the Directive. In circumstances where the Directive establishes an exhaustive set of conditions for the entry, residence and expulsion of Union citizens and their family members, the CJEU held that once rights under the Directive have been acquired, any measure seeking to restrict or remove those rights must be in strict conformity with the provisions, including safeguards, in the Directive. This approach avoids a Member State relying on domestic legislation which contains grounds for expulsion not provided for in the Directive.

Relevant facts

7. To understand the context in which the applicant makes his claim, I now propose to set out relevant facts which emerge from the evidence before me.

8. The applicant was born in 1984 and is a citizen of Pakistan, who arrived in this State, via Belfast, in May 2016 and married a UK citizen, in July 2017 (the “marriage”) prior to the UK exiting the EU.

9. On the basis of the marriage, the applicant sought a Residence Card pursuant to the Citizens’ Rights Directive and the European Communities (Free Movement of Persons) Regulations (the “2015 Regulations’).

10. Exhibit “M1” to the applicant’s grounding affidavit, sworn on 10 January 2024, includes inter alia copies of the correspondence which passed between the applicant’s then solicitors and the ‘Irish Naturalisation & Immigration Service’ within the respondent’s department, in relation to the said application.

October 2017 - Residence Card refused

11. The application for a Residence Card was refused, by letter dated 06 October 2017. A copy of this letter is also included in Exhibit “M1” where in the respondent stated inter alia that the “…application does not meet the requirements of Regulation 7(3) of the Regulations as you failed to submit the necessary supporting documentation as set out in Schedule 2 of the Regulations” and went on to state inter alia that the evidence proffered “…does not satisfy the Minister that the EU citizen is exercising their rights through employment, self-employment, the pursuit of a course of study, in voluntary employment or the possession of sufficient resources in accordance with the requirements of Regulation 6(3) of the Regulations”.

Review requested

12. The applicant requested a review of this decision and completed a ‘Form EU 4’, on 18 October 2017, in which the applicant submitted inter alia that:

“The deciding officer erred, as a matter of fact, in finding that the applicant had failed to establish that his EU citizen spouse is exercising her EU Treaty rights here. The applicant’s EU citizen spouse is self-employed and runs a business here. Evidence of this has been provided. The applicant has provided sufficient proof of his marriage to an EU citizen, and that EU citizen resides and runs a business here.”

13. Again, Exhibit ‘M1’ contains copies of correspondence which passed between the applicant’s solicitors and the respondent with regard to the request for a review of the 6 October 2017 decision.

21 November 2018 - Temporary permission

14. The applicant was advised that, while the review was pending, he could obtain temporary permission to reside in the State. By letter dated 21 November 2018 the applicant was granted a temporary permission to remain in the State until 23 August 2018. This temporary permission was subsequently extended (i.e. to 29 April 2019 and, thereafter, to 28 January 2020; and to 23 September 2020).

Review unsuccessful

15. By letter dated 23 November 2020 the respondent’s ‘EU Treaty rights review unit’ wrote to the applicant to confirm that his review had been unsuccessful and that the Minister’s 6 October 2017 decision to refuse his application was affirmed. The letter went on to state inter alia:

“By correspondence of 06/10/2017, the Minister refused your application for permission to remain. This was because you had failed to establish that you were a qualifying family member of an EU citizen in accordance with Regulation 3(5) of the Regulations.

Furthermore, you had failed to submit sufficient evidence of both your own and the EU citizen’s residence in the State, as well as insufficient evidence of the EU citizen’s activity in the State, as is required under Regulation 7(3) of the Regulations. The Minister was not satisfied that the EU citizen was exercising her rights in the State, pursuant to Regulation 6(3) of the Regulations.”

… “… you were asked to demonstrate further evidence of the asserted residence of you and the EU citizen, for example the tenancy agreement and further utility bills. However, it is apparent that despite these requests for further documentary evidence, insufficient was presented.

… You have not presented any documentary evidence by way of proof of the continued residence of you and the EU citizen at this address in the State. Indeed, it is noted that correspondence issued to this address on 29/10/2020 was returned to this office undelivered, raising concerns as to the current whereabouts of you and the EU citizen.

Therefore your application does not meet the requirements of Regulation 7(3)… … By way of evidence of the asserted exercise of rights of the EU citizen, it was asserted on both the EU 1 application, and your subsequent EU 4 review application form that the EU citizen was operating a business… Evidence of this assertion is highly limited… … Based on the documentation on file, there is insufficient evidence to demonstrate that the EU citizen’s alleged business has been actively trading for any significant length of time.

… It is apparent that evidence of the current activities of the EU citizen is scant and insufficient.”

23 November 2020 letter

16. The respondent’s 23 November 2020 letter proceeded to make a statement which, from the applicant’s perspective, is fundamental to the claim that he is entitled to recognition that he comes within the parameters of the Chenchooliah judgment, namely:

“Information available to the Minister via the Department of Employment Affairs & Social Protection indicates that the EU citizen, [S], is not currently exercising her rights in the State. There is no record of the EU citizen engaging in employment during 2020, and the EU citizen last worked for only 12 weeks during 2019. The EU citizen is also not currently in receipt of State benefits. When these facts are taken into consideration with the highly limited evidence presented, this does not satisfy the Minister that the EU citizen is exercising their rights through employment, self-employment, the pursuit of a course of study, involuntary unemployment or the possession of sufficient resources in accordance with the requirements of Regulation 6(3) of the Regulations.” (emphasis added).

17. In essence, the applicant submits that the statement “…the EU citizen last worked for only

12 weeks during 2019” constitutes an acceptance by the respondent that the EU citizen (and thenspouse of the applicant) was working in 2019 sufficient to establish EU Treaty rights, thus, bringing the applicant within the ambit of Chenchooliah.

Further application for Residence Card

18. Remaining with the chronology of relevant events, on 30 December 2020 the applicant made a further application for a Residence Card on the basis of his marriage to an EU citizen. The relevant letter, which was sent by the applicant’s solicitors to the respondent’s ‘EU Treaty rights section’, stated inter alia:

“Mr. [M] now finds himself in the somewhat unusual situation where he has been refused a Residence Card but continues to live with his wife, a UK citizen, in this jurisdiction… …Both have attended at our Office in recent days and are concerned for the future prospects of Mr. [M] arising from the fact that he currently has no permission to remain in the State.

Both accept that they did not, with the benefit of hindsight, put their best foot forward in the context of the recently refused Residence Card application. This is so do to the fact that Ms. [S] was unable to work for most of 2019 and all of 2020, for medical reasons…”

19. Once again, Exhibit “M1” contains copies of correspondence which passed between the applicant’s solicitors and the respondent’s department. This confirms, inter alia, that the applicant was given temporary permission to reside in the State while his application was pending.

Applicant’s request for “Stamp 1” permission

20. By letter dated 11 August, 2021, the applicant’s solicitors wrote to the respondent in the following terms:

“We are instructed that the applicant wishes to withdraw his current application, and to inform that the EU citizen and the applicant relationship has ended and he no longer knows whereabouts the EU citizen currently is. The Applicant respectfully requests that he be issued with a discretionary Stamp 1 without a need of work permit pursuant to Ministerial sanction to seek employment in the State.” (emphasis added).

Refusal of application for Residence Card

21. By letter dated 29 September, 2021, the respondent refused the applicant’s (second) application for a Residence Card under the Directive and 2015 Regulations.

18 October 2021 - request for Temporary Stamp 1 permission

22. By letter dated 18 October, 2021 the applicant’s solicitors wrote to the respondent’s ‘Repatriation Unit’ “…to submit these representations in support of his application for a temporary Stamp 1 under Nalini Chenchooliah v. Minister for Justice and Equality …”. The said letter went on to state inter alia:

“We understand that our client’s case clearly falls within the parameters of European Court of Justice ruling in Chenchooliah.

In Chenchooliah, the European Justice delivered a very significant (sic) on the 10th September, 2019, following a request for a preliminary ruling from the High Court in 2018.

This judgment has brought clarity regarding the correct procedure the spouse of EU citizens, whose EU citizen spouse has left Ireland and therefore have lose (sic) their rights to reside under Directive 2004/38/EC and the European Communities (Free Movement of Persons)

Regulations 2015 to their right of residence considered by the Minister.

In the proceedings it was confirmed by the High Court that Ms. Chenchooliah ceased to be a beneficiary of the Directive and Regulations following the departure of her EU citizen husband from Ireland. However, the grand chamber found that the question nevertheless remains as to whether Ms. Chenchooliah’s position was governed by the Directive or only by national law.

The grand chamber subsequently found that Ms. Chenchooliah’s circumstances are covered by the EU Directive, stating that the Directive not only contained the conditions for the granting of residence rights but also makes provision for a set of rules to cover situations where a right of residence is lost.

The (sic) further found that Article 15 of the Directive and the procedures provided for by Articles 30 and 31 apply to all decisions restricted free movement and restricted (sic) free movement of union citizens and their family members in cases where there are no public policy, public security or public health matters, as in this case. The Court further noted that this Article also provides that the State may not impose a ban on entry or expulsion in these circumstances.

The court concluded that to find otherwise would deprive Article 15 of its substance and practical effect. It further concluded in accordance with Article 15(3) of Directive 2004/38, the expulsion decision that may be made against Ms. Chenchooliah cannot under any circumstances, impose a ban on entry into the territory.

We understand that the Minister is currently considering to introduce new regulations or amend the current regulations to deal with the cases such as our client. We also understand that the Minister is offering temporary Stamp 1 to those applicants whilst they await the

introduction of new regulations.

In light of the foregoing, we understand that our client is also entitled to temporary Stamp

1 permission to remain lawful in the State in the meantime.

We will appreciate of (sic) you will please issue our client temporary Stamp 1 permission on your earliest convenience.

We look forward to hearing from you in this regard.” (emphasis added).

23. At the risk of stating the obvious, the request made in this letter was specific and was made repeatedly i.e. for “temporary Stamp 1 permission”. Furthermore, and recalling the relief sought by the applicant at (d) (ii), this letter did not call upon the respondent to make a decision that the applicant’s case falls within the ambit of Chenchooliah. Rather, as is perfectly clear, submissions to that effect were made with respect to a single request, namely, for temporary Stamp 1 permission.

4 March 2022 – call for a decision on request for Stamp 1 permission

24. By letter dated 4 March, 2022 the applicant’s solicitors wrote to the respondent’s ‘Repatriation Division’ stating inter alia:

“To the background of this case is that our client has submitted his application for a temporary permission Stamp 1 under Nilini Chenchooliah -v- Minister for Justice and Equality, the Court (Grand Chamber) 10 September, 2019 (“Chenchooliah”) on 18th October, 2021. Unfortunately, despite the passage of over 5 months, no decision has been reached.

In light of the foregoing, we write to put the Minister on notice of her intention to institute proceedings in the High Court and will do so unless a decision can be given within fourteen days.” (emphasis added).

25. To make two more statements of the obvious: (i) the only application was “for a temporary permission Stamp 1… under Chenchooliah; and (ii) the only decision which the applicant was pressing for concerned this application.

Application under Long Term Undocumented Migrants Scheme – 31 March 2022

26. However, rather than issue legal proceedings in the manner threatened on 4 March 2022, the applicant submitted, on 31 March 2022, an application under the Scheme for the Regularisation of Long-Term Undocumented Migrants (“the Scheme”).

20 Oct 2022 - Request for a decision on the Scheme application

27. By letter dated 20 October, 2022, the applicant’s solicitors wrote to the respondent’s ‘Immigration Service Delivery (Undocumented) Unit’ and pressed for a decision to be made in relation to the application under the Scheme, as submitted on 31 March 2022. It was submitted that the delay on the part of the respondent was egregious and inordinate and the applicant’s solicitors put the Minister on notice of an intention to institute proceedings unless a decision was given within fourteen days.

3 April 2023 – refusal of Scheme application

28. Whilst no such proceedings issued, the respondent’s Undocumented Scheme Unit issued a

decision, on 3 April 2023, which refused the application under the Scheme. This was on the basis that the applicant did not satisfy the requirement period of 4 years’ continuous undocumented residence in the State immediately prior to the opening date for the Scheme, (i.e. 31 January 2022).

Request for review

29. On 11 April 2023, the applicant’s solicitors appealed against the refusal to grant permission to the applicant under the Scheme. The letter from the applicant’s solicitors, dated 11 April 2023, comprised detailed submissions, running to some 9 pages, as to why the refusal under the Scheme should be reconsidered. The said letter concluded as follows:

“We wish to submit that Mr. [M] has met the undocumented residency criteria, is of good character of good conduct, and he has no adverse criminal record in this State or any other country.

He is also a non-EEA national who is over the age of 18 and has been living undocumented in the State continuously for 4 years and above at the time of applying under the scheme.

In light of the above submission, we respectfully request the Minister to kindly exercise his discretionary power to reconsider this application and to kindly grant our client 2 years of Stamp 4 to reside in the State under the undocumented scheme”.

29 June 2023 - Application for temporary Stamp 1 permission under Chenchooliah

30. Relatively soon after the applicant asked the Minister to reconsider the refusal under the Scheme, the applicant’s solicitors wrote to the respondent’s ‘Repatriation Division’ by means of a letter, dated 29 June 2023, entitled “Application for a temporary Stamp 1 under Nalani Chenchooliah v. Minister for Justice and Equality”. The very first paragraph of the letter repeated what the applicant was asking for:

“We act for [M] … to submit these representations in support of his application for a temporary Stamp 1 under Nalani Chenchooliah v. Minister for Justice and Equality…”

(emphasis added).

31. The said letter proceeded to state inter alia:

“By letter dated 23/11/2020, the Minister refused his review application based on the reasons mentioned therein. Despite the negative decision, the Minister however acknowledged the fact that the EU citizen had been working in the State in 2017 and was employed for twelve weeks in 2019. These activities had been taken into consideration in determining our client’s review application.

We rely on the letter dated the same stating the Minister’s positive decision about EU citizen’s activities in the State in 2017 and 2019.

We submit that the EU citizen here has been working in the State and has been exercising her EU Treaty rights in the State, particularly in year 2017 and 2019 in which the Minister had considered her contributions, though limited, to the State Revenue. She was in fact exercising her EU Treaty rights in the State in pursuant (sic) to Regulations 2015 in 2017 and 2019. No comment had been made in respect of the marital relationship between the couple and we should therefore agree that it is a genuine marriage, and the applicant is indeed a qualified family member of an EU citizen who was exercising her EU Treaty rights and should be treated as one to this purpose. On that basis, outlined should be deemed to be a family member of an EU citizen who was residing in the State in confirmative (sic) with the Regulations 2015.

Having considered the above mentioned fact, we understand that our client’s case clearly falls within the parameters of European Court of Justice Ruling in Chenchooliah …” (emphasis in original).

“please issue our client temporary Stamp 1 permission”

32. The balance of the 29 June 2023 letter essentially repeated, verbatim, the text of the previous letter, dated 18 October 2021, and concluded by making very clear what the applicant was asking for:

“In light of the foregoing, we understand that our client is also entitled to temporary Stamp

1 permission to remain lawful in the State in the meantime.

We will appreciate of (sic) you will please issue our client temporary Stamp 1 permission on your earliest convenience.

We look forward to hearing from you in this regard.” (emphasis added).

28 September 2023 - “No update has been received…”

33. By email sent on 28 September 2023 (at 11:11) the applicant’s solicitors wrote to the respondent in the following terms:-

“We act for the above named client in respect of his immigration matter in the State.

Please be informed that we have submitted an application under Chenchooliah judgment on behalf of Mr [M] in June 2023. No update has been received since then and our client is very anxious about his immigration position in the State.

Considering that this application has been pending a determination in your office for over three months, we now request a temporary Stamp 1 permission to be issued without any further delay.”

34. The reference to the application submitted in June was, of course, to the 29 June 2023 letter which explicitly asked the respondent to “Please issue our client temporary Stamp 1 permission”. As well as pointing out that no “update” had been received, the self-same request was repeated, in the 28 September 2023 email sent by the applicant’s solicitors, i.e. “we now request a temporary Stamp 1 permission to be issued”.

28 September 2023 email from the ‘Repatriation Division’

35. In the context of the foregoing, the respondent’s ‘Repatriation Division’ replied to the applicant’s solicitors, by email sent later the same day (4:13pm on 28 September 2023), stating:-

“I am directed by the Minister for Justice to refer to your correspondence dated 28 September, 2023 in which your office asked for an update your (sic) client’s application for permission to reside under the principles in Chenchooliah.

Based on the factual matrix currently before the Minister, it is the Minister’s position that your client’s case falls to be processed under domestic legislation, namely the Immigration Act 1999. In this regard, it is noted that your client currently has an open Regularisation of Long Term Undocumented Migrant Scheme appeal application. While this application is pending, this office will not be issuing your client with an intention to deport under section 3(4) of the Immigration Act 1999, and will review this situation once their appeal application is completed.” (emphasis added).

36. Before proceeding further, it seems appropriate to make a number of observations in relation to the said email, as follows:

(i) whereas the email sent some hours earlier on the same day complained about the lack of an “update”, the response provided what was explicitly said to be an “update”;

(ii) whereas the only request made on behalf of the applicant was for temporary Stamp 1 permission, clarification and comfort was given to the effect that no intention to deport would be issued for so long as the applicant’s undocumented migrant scheme appeal application was “pending”;

(iii) whereas an indication was given of the Minister’s position concerning the applicant, in light of the principles in Chenchooliah, that indication was subject to 2 explicit caveats.

First, it was based on the factual matrix then before the Minister. Second, it was subject to the situation being reviewed in the future (after the ‘live’ Scheme appeal application had been determined).

36. During the hearing before me, a range of submissions were made with sophistication and skill, by counsel for the applicant, to the effect that the foregoing email, dated 28 September 2023, was a decision, binding on the Minister, that the applicant does not come within the Chenchooliah principles. The gravamen of the applicant’s argument is that the 28 September 2023 email was an express decision not to proceed by way of a removal order and that the applicant’s deportation from the State would be pursuant to the 1999 Act.

37. In my view, when the 28 September 2023 email from the Repatriation Division is read objectively and in context, it allows for a finding of fact that no such decisions were made by the respondent. In objective terms, the respondent neither decided that the applicant should be removed from the State, at all, nor did she decide the manner in which to seek the applicant’s removal.

38. It seemed to me necessary to engage closely with what the 28 September 2023 email says, and does not say, because of the great emphasis laid on its terms during the submissions on behalf of the applicant, who contends, in effect, that by means of this email the Minister has set her face against dealing with the applicant’s case in accordance with the Chenchooliah principles. In my view, the applicant is incorrect. However, this is far from the end of the analysis and I now turn to the uncontroverted evidence contained in the affidavit sworn on behalf of the respondent by Ms. Eileen O’Reilly, assistant principal officer of Immigration Service Delivery in the Department of Justice.

Uncontroverted evidence on behalf of the respondent

39. Ms. O’Reilly’s affidavit, sworn on 11 October 2024 (the “replying affidavit”), begins with averments as to her role, authority and source of knowledge, none of which is in dispute:-

“1. I am an Assistant Principal Officer working in Immigration Service Delivery within the Department of Justice.

2. I make this affidavit on behalf of the Respondent and with her authority.

3. I make this affidavit from facts within my own knowledge, where appears and where so appearing I believe the same to be true and accurate.

4. I say that the facts set out in the Statement of Opposition are true and correct to the best of my knowledge and belief.”

40. Recalling that, on the applicant’s case “… the Respondent has decided that the appropriate mechanism is deportation not removal” (para. 19 of his legal submissions) the following uncontroverted evidence is fundamentally important:-

“5. I say that the Respondent has neither commenced, nor decided to commence, any procedure to remove the applicant from the State, whether pursuant to the Citizen’s Rights Directive or the Immigration Act 1999.

…

16. I say that the Respondent is aware that the Applicant’s application and appeal under the Scheme have been unsuccessful and the Respondent has not decided at present that the Applicant should be removed from the State at this time, whether under Chenchooliah principles or domestic law or at all.

…

18. Accordingly, and for absolute clarity, I say that no decision has been reached concerning the question whether or not the Applicant comes within the parameters of Chenchooliah.” (emphasis added).

41. It should also be noted that this Court also has the following uncontroverted evidence proffered on behalf of the respondent, which addresses the 28 September 2023 email, specifically, (at para. 21 of the replying affidavit):

“…the email dated 28 September 2023… does not bind the respondent to deporting the applicant under the Immigration Act 1999 and no steps have been taken on foot of that email (or, in fact, at all) to remove the applicant from the state”

42. During the hearing, counsel for the applicant made a range of submissions to the effect that, by means of the 28 September 2023 email, (i) the Minister has made a decision to seek the removal of the applicant from the State; (ii) the Minister has decided to employ the 1999 Act, not Chenchooliah; and (iii) the averments at para. 18 could not be correct.

43. To take one example, counsel for the applicant referred to paragraph 15 of the replying affidavit in which Ms. O’Reilly averred, on behalf of the respondent, that “The email dated 28 September 2023 is not a final decision and is open to review by the respondent” and focussed on the words “not a final decision”, going on to submit that the word “final” necessarily implies that a

decision has been made. With respect, irrespective of how artful and the undoubted skill with which these submissions are made, they simply ‘fly in the face’ of evidence to the contrary.

44. Whereas counsel for the applicant points out that the author of the 28 September 2023 email did not swear an affidavit, I am satisfied, for the following reasons, that the evidence before me can, indeed must, be relied upon. First, there is no dispute in relation to Ms. O’Reilly’s (i) role;

(ii) source of knowledge; and (iii) authority to swear on behalf of the respondent. Second, the applicant chose not to seek cross-examination in relation to any of the averments made on behalf of the Minister.

45. Thus, the undisputed facts which emerge from the evidence before this Court include the following as regards the current position:-

(i) The respondent has not decided that the applicant should be removed from the State;

(ii) The respondent has not decided to commence any procedure to remove the applicant from the State;

(iii) The respondent has not commenced any procedure to remove the applicant from the State;

(iv) There has been no refusal by the respondent to deal with the applicant’s case under Chenchooliah;

(v) In circumstances where the respondent has not in fact decided that the applicant should be removed from the State, at all, the respondent has not in fact decided whether any potential removal should be sought under Chenchooliah principles, or domestic law.

Fork in the road

45. In oral submissions made on behalf of the applicant it was contended, repeatedly, that a ‘fork in the road’ has been reached, such that the applicant is entitled to come to court and say that his removal from the State can only be sought in accordance with Chenchooliah principles, not domestic law.

46. Underpinning the ‘fork in the road’ metaphor is the proposition that, of the two ‘roads’ ahead, the Minister has decided to go down the wrong one (domestic law) and must be compelled to travel the correct road (Chenchooliah), with the destination being the exclusion of the applicant from the State.

47. In my view, the facts which emerge from the evidence illustrate that the metaphor is wholly inappropriate. The facts make clear that no ‘fork in the road’ has been reached. Why? Because the Minister has decided nothing. She has not decided to seek the applicant’s removal. She has not decided to commence any process with that objective in mind (no such objective having been formed).

Decision to refuse permission under the Scheme is upheld

48. To complete the chronology, by letter dated 18 October 2023, the respondent’s Undocumented Scheme Unit wrote to the applicant to confirm that the decision, of 3 April 2023, refusing him permission under the Scheme was upheld.

Chenchooliah

49. Having looked in some detail at the facts in the present case, it seems appropriate to look at the facts in Chenchooliah, which can be summarised as follows.

50. Ms. Chenchooliah, a Mauritian national, arrived in Ireland in 2005 on a student visa and resided in this State until 2012 on the basis of successive permissions. In September 2011, she married a Portuguese national living in Ireland and, in February 2012, she applied for a residence card as the spouse of an EU citizen. In September 2012, the Minister refused her application on the basis of a failure to meet the requirements of Regulation 6(2)(a) and (b).

51. In October 2012, Ms. Chenchooliah provided evidence that her spouse had been employed in a restaurant for two weeks. Ms. Chenchooliah sought, and was granted, an extension of time to submit an application for the review of the September 2012 decision. Ms. Chenchooliah did not provide any new information for almost two years and the September 2012 decision became final.

52. By letter dated 17 July 2014, Ms. Chenchooliah informed the Minister that, following a criminal conviction, her spouse had been in prison in Portugal, since 16 June 2014, and she sought permission to remain in this State on the basis of her personal circumstances. By letter of 3 September 2014, the Minister informed Ms. Chenchooliah that a removal order against her was being considered on the basis that her Union citizen spouse had resided in Ireland for longer than three months without complying with the requirements of Regulation 6(2) and that she was, therefore, no longer entitled to remain in the State. In November 2015, lawyers for Ms. Chenchooliah asked the Minister to exercise the discretionary power to grant her leave to remain on the basis of, inter alia, her long period of residence in Ireland and her employment history and prospects.

53. By letter dated 15 November 2016, the Minister informed Ms. Chenchooliah that he had decided not to proceed with the removal order and, instead, to commence a deportation order process in accordance with s. 3 of the 1999 Act and the said letter enclosed a proposal to make a deportation order. Also included was a previous decision, dated 21 October 2016, confirming that it had been decided not to make a removal order in respect of Ms. Chenchooliah under the 2006 and 2015 Regulations. On 12 December 2016, this Court granted Ms. Chenchooliah leave to apply for judicial review of the 21 October 2016 decision and to seek injunctive relief restraining the Minister from adopting a decision to deport her.

54. As para. 49 of the decision in Chenchooliah makes clear, the questions referred for a preliminary ruling were as follows:-

“(1) Where the spouse of an EU citizen who has exercised free movement rights under Article 6 of Directive [2004/38] has been refused a right of residence under Article

7 on the basis that the EU citizen in question was not, or was no longer, exercising EU Treaty rights in the host Member State concerned, and where it is proposed that the spouse should be expelled from that Member State, must that expulsion be pursuant to and in compliance with the provisions of the Directive, or does it fall within the competence of the national law of the Member State?

(2) If the answer to the above question is that the expulsion must be made pursuant to the provisions of the Directive, must the expulsion be made pursuant to and in compliance with the requirements of Chapter VI of the Directive, and particularly Articles 27 and 28 thereof, or may the Member State, in such circumstances, rely on the provisions of the Directive, in particular Articles 14 and 15 thereof?”

55. In Chenchooliah, the CJEU went on to state, at para. 50:-

“ By its two questions, which it is appropriate to consider together, the referring court seeks to ascertain, in essence, whether the provisions of (i) Chapter VI of Directive 2004/38, in particular Articles 27 and 28 thereof, and (ii) Articles 14 and 15 of the Directive are to be interpreted as meaning that one or other of those sets of provisions are applicable to a

decision to expel a third-country national on the ground that that person no longer has a right of residence under the directive in a situation, such as that at issue in the main proceedings, where the third-country national concerned married a Union citizen at a time when that citizen was exercising his right to freedom of movement by moving to and residing with that third-country national in the host Member State and, subsequently, the Union citizen returned to the Member State of which he is a national.” (emphasis added).

“a decision to expel”

56. Having conducted its analysis, the Court proceeded to state the following at para. 89 in Chenchooliah:-

“In the light of all the foregoing, the answer to the questions referred is that Article 15 of Directive 2004/38 is to be interpreted as being applicable to a decision to expel a thirdcountry national on the ground that that person no longer has a right of residence under the directive in a situation, such as that at issue in the main proceedings, where the thirdcountry national concerned married a Union citizen at a time when that citizen was exercising his right to freedom of movement by moving to and residing with that third-country national in the host Member State and, subsequently, the Union citizen returned to the Member State of which he is a national. It follows that the relevant safeguards laid down in Articles 30 and

31 of Directive 2004/38 are applicable when such an expulsion decision is adopted and it is not possible, under any circumstances, for such a decision to impose a ban on entry into the territory.” (emphasis added).

57. Wholly unlike the position in Chenchooliah, no “decision to expel” the applicant has been made by the respondent. The facts at issue in the present application are materially different to those in Chenchooliah, as can readily be seen from the CJEU decision, paras. 39 and 40 of which state:

“By letter of 15 November 2016, the Minister informed Ms Chenchooliah that he had decided not to proceed with the removal order and instead to commence a deportation order process in accordance with Section 3 of the 1999 Act.

A proposal to make a deportation order was included with that letter and Ms Chenchooliah was invited to make submissions on the proposal. That proposal was based on Ms Chenchooliah’s unlawful residence in Ireland since 7 February 2012 and on the Minister’s opinion that her deportation would be conducive to the common good.” (emphasis added).

Section 3 of the 1999 Act

58. The reference at para.39 in Chenchooliah to “Section 3 of the 1999 Act” is to the following provisions in the Immigration Act, 1999:

“(3) (a) Subject to subsection (5), where the Minister proposes to make a deportation order, he or she shall notify the person concerned in writing of his or her proposal and of the reasons for it and, where necessary and possible, the person shall be given a copy of the notification in a language that he or she understands.” (emphasis added).

59. As counsel for the respondent points out, the deportation process laid down in the 1999 Act and referred to in Chenchooliah, is a formal one. The respondent is required, pursuant to s. 3(3) of the 1999 Act, to notify the applicant of a proposal to deport him.

60. Consistent with the uncontroverted evidence that “the Respondent has not in fact decided that the Applicant should be removed from the State” and that “no decision has been reached concerning the question whether or not the Applicant comes within the parameters of Chenchooliah” and entirely unlike the factual position in Chenchooliah, the Minister

• has not informed the applicant that she has decided not to proceed with a removal order;

• is not proposing to make a deportation order under the 1999 Act;

• has not issued the proposal to deport which is mandated by s. 3(a); and

• there is no evidence whatsoever that the Minister has formed the opinion that the applicant’s deportation would be conducive to the common good.

61. In short, the Chenchooliah principles concern “a decision to expel a third-country national” whereas, in the present case, no decision whatsoever has been made which engages Chenchooliah principles.

62. Nor is there anything in Chenchooliah which obliges the Minister to make a decision between Chenchooliah principles, on the one hand, and the 1999 Act, on the other, before making a decision as to whether to seek the applicant’s removal from the State, at all.

63. There was certainly no authority drawn to my attention, to the effect that an individual in the applicant’s position enjoys a right to be told, by the respondent, how the Minister would propose to deal with their removal (were it to be sought at a future point) in circumstances where no decision whatsoever to seek their removal had been made by the Minister.

64. To summarise, it is common case that the applicant has no lawful basis to remain in the State. Whereas Chenchooliah deals with the manner in which someone can be removed from the State, the simple fact is that no decision has been made by the respondent which engages the principles in Chenchooliah. Thus, the applicant’s reliance on Chenchooliah is, in my view, misplaced.

Pre-emptive attack

65. Returning to the replying affidavit sworn on behalf of the respondent, I accept as a correct characterisation of matter the averments made by Ms. O’Reilly at, para. 9:-

“The nature of the reliefs sought constitute a pre-emptive attack on any decision which the Respondent may or may not make concerning whether to remove the applicant from the State.” (emphasis added).

66. In a similar vein, para. 17 contains the following uncontroverted averments:-

“I say and believe that it is not appropriate for the Respondent to commit now to removing the Applicant under any particular procedure in circumstances where the respondent has not in fact decided that the applicant should be removed from the State. The former decision can only properly be determined at the time when (and if) the latter decision is reached.”

Premature

67. The fact that the respondent has neither made a decision, nor is proposing to make one, is highly relevant in the context of the relief sought by the applicant. In Damache v. Minister for Justice [2022] 1 IR 669 (“Damache”), the Supreme Court (Dunne J.) stated :-

“[32] …In circumstances where a decision has not been made but it is merely proposed to be made, relief by way of certiorari does not lie and in those circumstances, it could readily be said that an application to quash the making of a particular decision in advance of the decision being made would be premature…

[33] I agree with the view expressed by the trial judge to the effect that the circumstances in which a mere proposal can be judicially reviewed are very limited indeed…”

Whereas the Supreme Court has made clear that a proposal to make a decision can be judicially reviewed only in “very limited” circumstances, the facts in the present case illustrate that no proposal whatsoever has been made. It will be recalled that, if the Minister proposed to make a deportation order concerning the applicant, she is required by s.3 of the 1999 Act to notify the applicant in writing of the proposal and the reasons for same. This has not been done because, as a matter of fact, there is no proposal to deport the applicant. Therefore, I regard this application as premature and it seems to me that, were this Court to grant the judicial review, it would constitute a very clear and impermissible breach of the principle outlined in Damache.

68. The foregoing analysis applies with equal force to the declaratory relief which the applicant seeks (at para. (d) (iii) of the statement of grounds) as an alternative to mandamus. I am fortified in this view by the principles articulated in Leng v. Minister for Justice [2015] IEHC 681 (“Leng”), wherein (at para. 36) Mr. Justice Humphreys stated:-

“…the circumstances in which judicial review of a mere proposal to deport an applicant is available must be extremely limited and confined to cases where the Minister had no jurisdiction to make the proposal (see by analogy cases such as Stefan v. Minister for Justice [2001] 4 I.R. 203, G.O. v. Minister for Justice and Equality [2015] IEHC 646 (MacEochaidh J.). The correct response to such a proposal, if a recipient wishes to challenge it, is to write to the Minister setting out representations and if needs be legal argument as to why the proposal should not be converted into an actual

decision. Where the proposal was based on a fundamental error such as to deprive the Minister of any jurisdiction - for example where the applicant was in fact an EU citizen with an entitlement to be present in the State - judicial review would be a legitimate option despite the alternative remedy of making representations. But where the applicant is a person who is prima facie liable to having a deportation order made against him or her, as is clearly the case here, judicial review is not an appropriate first response to such a proposal.” (emphasis added).

69. There is no dispute between the parties as to the correctness of the foregoing principles. In short, a challenge to a proposal (as opposed to a substantive decision) will generally be premature, save where the decision - maker lacks jurisdiction to make such a proposal. However, in the present case, things have not even reached the stage of any proposal.

70. It is not unfair to say that the ‘height’ of the applicant’s case is to say that if one looks at the respondent’s previous refusal of permission to reside in the State, they come within the ambit of Chenchooliah. However, the foregoing is no answer to the principles articulated in the jurisprudence in relation to prematurity. Guided by Damache and Leng, it seems to me that this application is entirely premature. In short, the Minister has made neither any decision nor any proposal and, therefore, the applicant cannot make the case that he falls within the “extremely limited” cases contemplated in Leng, which permit the challenging of a proposal to deport on the basis of a lack of jurisdiction.

71. Not having made any decision to date, the proposition at the ‘heart’ of the applicant’s case is that a decision which the Minister may make in the future will be an unlawful one and, therefore, this Court must intervene by way of judicial review. In my view, this proposition is unsupported by fact and wrong in law. There is not a ‘shred’ of evidence to the effect that the respondent intends to act other than in accordance with law and it seems to me that this Court must act on the presumption that, in making any future decision, the respondent Minister will act lawfully [See, for example, F.

M. v. The Minister for Justice and Equality & Ors [2021] IECA 106; East Donegal Co-operative

Livestock Mart v. Attorney General [1971] I.R. 317; North East Pylon Pressure Campaign Limited v. An Bord Pleanála [2016] IEHC 300; and RC (Afghanistan) v. Minister for Justice [2019] IEHC 65].

Separation of Powers

72. It also seems to me that the applicant is, in substance, asking this Court to direct the respondent Minister as to how she should exercise executive power.

73. This is not a situation where the Court is being asked to quash an unlawful decision. Nor is it a case where the Minister has failed to make a decision which she was under a duty to make. Rather, the applicant is seeking to direct the Minister as to how a decision should be made at first instance. This seems to me to offend the separation of powers principle and runs contrary to the dicta in T.D. v. Minister for Education [2001] 4 I.R. 259 (at p.33) wherein Mr. Justice Murray stated:

“Judicial review permits the Court to set aside executive actions or legislative measures which offend against the law or the constitution. Judicial review does not in such democracies give the Courts jurisdiction to exercise rather than review executive or legislative functions.

Judicial review permits the Courts to place limits on the exercise of executive or legislative power, not to exercise it themselves”.

74. Were this Court to grant the relief sought, it would offend the foregoing principle, in my view. Chenchooliah does not require that the Minister must now make a decision that the applicant should be excluded from the State, or not. Thus, granting the relief sought would or could have the effect of compelling the respondent to bring forward a decision as to whether the applicant should or should not be removed from the State and would bind the Minister into applying Chenchooliah at some future point, regardless of the then factual or legal position. Therefore, not only is this application wholly premature, if the relief sought by the applicant were granted, this Court would be ‘binding the hands’ of the Minister in relation to the exercise of her executive power, impermissibly, and in excess of this Court’s jurisdiction.

75. Counsel for the respondent also drew my attention to the decision of the Court of Appeal in A.B v. Minister for Justice [2016] IECA 48 (“AB”). In AB, the Minister gave written notice that she was proposing to make a deportation order. Ryan P. considered an application to quash the proposal to deport in circumstances where the applicant contended that she had a right to make representations invoking rights under the Constitution and ECHR without the risk of permanent exclusion from the State if those submissions were unsuccessful. From para. 45, the then President stated:-

“45. This case is not about whether A.B. has rights, but rather whether she has a right to having a particular procedure prescribed by her in order to determine her rights and to insist on that procedure operating at a time when she has prima facie no right whatsoever to be here. This case falls to be decided by reference to A.B.'s entitlement, if any, to specify and insist upon the procedure of a discrete and advance consideration of her claim to be entitled to remain in the State. Apart from anything else in that regard, there is a serious problem because it would involve the Minister deciding on a separate and advance basis the very case that the Minister would have to address in performing the Minister's own statutory functions under s.

3 of the 1999 Act.

46. A.B.'s advisers are seeking to exercise control over the process of decision making involving A.B., whereas the reality is that the consideration of A.B.'s situation and whether she should be permitted to be in the State is part of the Executive function, properly exercisable by the Minister in accordance with law. In this case, the Minister is exercising the executive power of the State under Article 28.2 of the Constitution in accordance with law enacted by the Oireachtas.

…

50. Such proposed rulings in advance of any deportation consideration would create another layer of administration, not only for the Minister in preparing a mode of dealing with these claims and with all the necessary additional resources that would be deployed in dealing with those applications, but also for the courts which would have to cope with an influx of claims that arose upstream from the deportation order. In my judgment, that is contrary to the scheme of the legislative apparatus to deal with immigration and asylum claims. This consists now of a body of legislation and there is also a large number of cases decided by the Supreme Court and the High Court dealing with various aspects of the administration of this system.

There is no justification for adding a new stage in the process.” (emphasis added).

76. It seems to me that there are clear parallels between AB and the present case. If it is trite law to say that judicial review concerns process not outcome, there is in fact no process in being in the present case, and the applicant is seeking to compel the respondent to follow a process of his choosing, with a view to obtaining a certain outcome. Whilst the facts are different, it seems to me that the principal articulated by the learned President in AB (where a proposal to deport had issued) applies with even greater force in the present case (where no such proposal has been made).

77. In my view, the present case is not about whether the applicant comes within Chenchooliah. Rather, it is about whether the applicant has a right to tell the respondent Minister what decisions to make, and when to make them. In short, the applicant is, in my view, impermissibly seeking to prescribe a particular procedure or approach, and to exercise control over the process of the Minister’s decision-making, in the manner deprecated in A.B.

Alternative remedies

78. For the sake of completeness, I also accept the respondent’s submissions to the effect that the applicant has a suitable alternative remedy. Whereas the applicant avers (at para. 10 of his affidavit) that “my main concern is that I will end up being the subject of a deportation order”, were a deportation process to be commenced in the future, the alternative remedies available to the applicant would be:-

(i) a right to argue, by reference to the principal articulated in Leng, that the courts should quash a deportation proposal for want of jurisdiction, were one to issue (per s.3(3) of the 1999 Act);

(ii) a right, under section 3(4) of the 1999 Act, to make representations to the Minister in the event of being issued with a s. 3(3) proposal to deport, which representations the Minister is required to have regard to;

(iii) a right to challenge a deportation order were it ultimately to be made;

(iv) a right to apply for revocation of any such deportation order; and

(v) a right to challenge any failure to revoke such a deportation order.

79. The applicant has not established that any of the foregoing would be ineffective in vindicating his asserted right to be removed from the State under Chenchooliah principles, as opposed to by way of deportation.

In conclusion

80. For the reasons set out in this judgment, I am satisfied that the applicant is not entitled to any relief and this claim must be dismissed.

81. On 24 March 2020 the following statement issued in respect of the delivery of judgments electronically: “The parties will be invited to communicate electronically with the Court on issues arising (if any) out of the judgment such as the precise form of order which requires to be made or questions concerning costs. If there are such issues and the parties do not agree in this regard concise written submissions should be filed electronically with the Office of the Court within 14 days of delivery subject to any other direction given in the judgment. Unless the interests of justice require an oral hearing to resolve such matters then any issues thereby arising will be dealt with remotely and any ruling which the Court is required to make will also be published on the website and will include a synopsis of the relevant submissions made, where appropriate.”

82. Having regard to the foregoing, the parties should correspond with each other regarding the appropriate form of order, including as to costs. If agreement is reached, a draft order should be submitted forthwith. In default of agreement, and recognising that this judgment is being delivered prior to the commencement of Michaelmas Term, the parties have liberty to file short written submissions in the Central Office by no later than 4pm on Friday 17 October. I propose to list the matter at 10:30am on Friday 24 October for the purpose of ruling on any dispute regarding costs.