High Court dismisses appeal against refusal of regularization under scheme due to temporary stamp 4 status.

THE HIGH COURT

[2025] IEHC 566

[Record No. 2024/39JR]

BETWEEN

MSB

APPLICANT

AND

THE MINISTER FOR JUSTICE

RESPONDENT

JUDGMENT of Ms Justice Miriam O’Regan, delivered on the 30th day of October 2025.

Introduction

1. The within applicant secured leave on 19 February 2024 in respect of a Statement of Grounds dated 11 January 2024 in which the principal relief sought is an order quashing the

decision of the respondent, made on review bearing date 21 November 2023 wherein the Minister upheld the first instance decision bearing date 14 April 2023 to refuse the applicant permission to remain in the State under the Regularisation of Long-Term Undocumented Migrant Scheme 2022 ('the Scheme'). The decision is based on the finding that the applicant was not eligible under the Scheme as he held temporary Stamp 4 permissions from 6 August 2020 until 18 February 2022, which permissions were not revoked as they were granted on foot of the review as opposed on foot of the marriage. Therefore, the applicant did not satisfy the required period of undocumented residence for the Scheme.

Background

2. The applicant arrived in Ireland on 9 September 2013 pursuant to student permission which expired on 30 September 2014. On 20 August 2014 the applicant married an EU citizen and on 13 October 2014 the applicant applied for a residence card pursuant to the provisions of Directive 2004/38/EEC (‘the 2004 Directive’) and the EU Free Movement of Persons Regulations (SI 656/2006) (‘the 2006 Regulations’). Pending the determination of such application the applicant was on 3 November 2014 granted temporary permission to reside on a Stamp 4 permission however without acknowledgement of any entitlement to reside under the EU treaty rights. On 13 April 2015 the application was refused as there was no evidence of the activities of the applicant's wife working in the State and he was also advised of a right of review under Regulation 21 of the 2006 Regulations. A request for such a review was made on

22 April 2015 which was successful by decision of 16 October 2015 whereupon the applicant was afforded a five-year substantive residence card permission from that date.

3. By letter of 7 May 2019 from the respondent to the applicant, the applicant was advised that the respondent believed that his marriage was a marriage of convenience and if, following consideration, the Minister deemed the marriage to be one of convenience then the Stamp 4 EU FAM permission of 16 October 2015 will be deemed “never valid” and also the permission granted pending the decision of 16 October 2015 would also be deemed never to have been valid.

4. On 22 June 2019 the Minister deemed the applicant's marriage to be one of convenience and advised that any previous permission, that is the permission from 3 November 2014 to 13 May 2015 and the substantive permission commencing on 16 October 2015 until 15 October 2020, were deemed invalid.

5. On 17 July 2019 the applicant requested a review of the decision of 22 June 2019 pursuant to Regulation 25 of the 2015 Regulations. On 6 August 2020 the applicant obtained a temporary Stamp 4 permission to 18 February 2022 pending the review decision. (The above reflects the history given in the Statement of Grounds although, as hereafter set out, significant correspondence is omitted. Furthermore, the initial stamp 4 permission was valid until 10 May, 2021 and subsequently extended on 27 May, 2021 until 18 February, 2022.) In the permissions so granted it was indicated that such permission was not an acknowledgement of the rights of the applicant under the EU treaty rights. On 29 March 2022 the Minister upheld the first instance decision of 22 June 2019 and revoked the residence card and permission held between

16 October 2015 and 22 June 2019.

6. On 22 April 2022 the applicant applied under the Scheme for permanent residence in the State. On 14 April 2023 this was refused as the applicant did not meet the eligibility criteria of being undocumented for at least four years prior to 31 January 2022, by reason of his Stamp

4 permission from 6 August, 2022 to10 May 2021 and again from 27 May 2021 to 18 February 2022. On 15 May 2023 the applicant appealed the refusal decision aforesaid on the basis that the Stamp 4 permission therein referred to had previously been deemed invalid. On 21 November 2023 the first instance decision of 14 April 2023 was upheld, on the basis that such permissions were not revoked, and it is this appeal decision which the applicant seeks to quash.

7. The applicant's proceedings herein comprised one of a number of sets of proceedings with similar factual backgrounds (save in respect of dates) which were pending before the asylum list when one was identified to be heard as a test case. This test case is the matter of MA v The Minister for Justice 2024/4JR (‘MA’) and the judgment therein [2025] IEHC 135, was delivered by Heslin J on 6 March 2025. MA sought an order of certiorari quashing the

decision of the respondent of 4 December 2023 wherein the application for residency under the Scheme was refused. As in the present case MA had his marriage deemed to be a marriage of convenience following which the Minister, in a decision, indicated that MA's prior residence card and permission based thereon was deemed never to have been valid. MA sought a review of such decision on 7 September 2020 and was afforded temporary permission pending the outcome of the review. In MA’s application under the Scheme, he was found to be ineligible as he did not fulfil the criteria thereunder of being without permission to reside in the State from 31 January 2018 to 31 January 2022 at a minimum. The subsequent judicial review proceedings were based on this finding and the certiorari claim was made in respect the review

decision.

Submissions

8. In oral submissions the applicant sought to distinguish himself from the applicant in MA and further sought to avoid the application of MA on his set of circumstances. The applicant argues that there are additional matters raised in his proceedings than in the MA proceedings and further argues that two relevant decisions that the applicant is relying on were not open to Heslin J during the course of MA.

Additional Jurisprudence

9. The Applicant makes reference to the matter of Druzinins & Anor v Minister for Justice Equality and Law Reform [2010] IEHC 84 (hereafter ‘Druzinins’) being a judgment of Cooke J delivered on 16 March 2010. In that decision Cooke J was dealing with Regulation 7(1)(c) of the 2010 Regulations (now replaced by the 2015 Regulations) engaging Regulation 7(1) and 7(6). In that matter, Cooke J noted that the provision provides that when an application for a family member residence card is made, the Minister shall immediately cause to be issued a notice acknowledging receipt of an application and Cooke J felt that this is clearly designated to legitimise the presence of the family member in the State pending a decision. Cooke J was of the view that where a negative decision had been made, and a review requested and accepted the Minister is under an obligation to continue the effect of that acknowledgement until the review has been determined – it is not unreasonable to expect that the Stamp 4 visa should be temporarily extended until the conclusion of the review.

10. Under Regulation 25 of the 2015 Regulations which is headed ‘Review of Decisions' it is provided that a person who claims to have an entitlement under the Regulations to enter the State may seek a review of any decision concerning that entitlement.

11. Under subrules 6 and 7 it is provided that a person who makes an application for a review of a removal order may make an application for the suspension of the enforcement of that removal order pending review in which event the removal order will be suspended save in limited circumstances.

12. In AM v The Commissioner of An Garda Síochána (Record Number 2019/674/SS), being an Article 40 enquiry before the High Court and subsequently before the Court of Appeal, the applicant claimed he had a right to remain in the State while his EUTR review was pending. This argument was rejected in an ex tempore decision of Pilkington J in the High Court as there was no right to remain in the State pending a review of his application under Regulation 25 of the 2015 Regulations. Birmingham J in the Court of Appeal dismissed the appeal and affirmed the absence of any right to remain pending a review under the 2015 Regulations.

13. Unlike a first instance application the Regulations do provide for an applicant to be entitled to remain in the State, but they do not so provide under the review provisions of the Regulations. Therefore, I am satisfied that the foregoing jurisprudence of AM is sufficient authority to say that an applicant does not have a right to remain based on seeking a review of a decision finding a marriage of convenience.

14. Indeed, it is peculiar that the applicant appears to continue to rely on the judgment of Cooke J aforesaid vis-à-vis a right to remain however concluded oral submissions with statement to the effect that the applicant never claimed a right to reside in the State pending the processing of a review application.

15. All of the foregoing is also relevant in relation to the applicant's assertion that it was assumed that the two temporary permissions granted to the applicant between 2020 and 2022 based on the applicant's marriage to the EU citizen and therefore revoked or declared invalid by the Minister in her review decision of 29 March 2022 dealing with the finding of a marriage of convenience on review.

16. In written submissions the Applicant relies on Saleem v Minister for Justice (No. 1) [2010] IEHC 386 (‘Saleem’) to the effect that the Minister should clearly plead matters of law being relied on. The applicant submits that on this basis the Minister failed to indicate the basis for granting the temporary permissions. In oral submissions it is said the Minister could have given such permissions under the Regulations but does not refer to any enabling provision in this regard. It does appear Saleem was dealing with equivocation in pleadings and the only complaint in respect of the Statement of Opposition is the assertion that it introduced a reason of nonrevocation which did not appear in the impugned decision, however, the Applicant is incorrect in this regard. The fact that Saleem was not raised in MA is therefore immaterial.

Revocation

17. In the Statement of Grounds, it is claimed that a declaration should be afforded that retrospective invalidation of the applicant's EU residence card on the basis of Regulation 27(12) of the 2015 Regulations and Article 35 of the 2004 Directive applies equally to any ancillary permissions granted on the same basis. Under Regulation 27 (1) of the 2015 Regulations it is provided: – “The Minister may revoke, refuse to make or refuse to grant, as the case may be, any of the following…” Thereafter the Regulation sets out various residence permissions/certificate/card. In the EU review decision of 29 March 2022, the background and factual matrix to the review was set out and in the pre-penultimate paragraph of the third page of the decision it is stated: – “This marriage was never genuine, and the Minister finds that it should be disregarded for the purposes of immigration. As such, any permissions provided to you on the basis of this marriage were not valid permissions”.

In the next paragraph it is said: -

“The Minister is not persuaded that the decision of 22 June 2019 should be overturned. You have failed to establish that the deciding officer erred in fact or in law when revoking your residence card.”

On the final page of the decision, it was stated that

“The marriage was never genuine and will be disregarded for the purposes of immigration and any immigration permissions that were provided to you on the basis of this marriage were not valid permissions.”

18. The decision went on to state: –

“Against this background, the Minister has decided to affirm the decision of 22 June 2019 to revoke your residence card. Furthermore the permission that you held between

16 October 2015 and 22 June 2019 was not a valid permission, and it has been revoked.”

The first instance decision which was affirmed is dated 22 June 2019 wherein it was indicated that the Minister had decided to revoke the applicant's permission to remain in accordance with the provisions of Regulation 27(1) of the 2015 Regulations and Article 35 of the 2004 Directive. That decision went on to provide: - “… The Minister has now disregarded this marriage for the purpose of determination of this matter. Further any previous permission held on the basis of this marriage i.e. the permission held whilst your application was pending from 3 November 2014 to 13 May 2015 and the substantive permission from 16 October 2015 to 15 October 2020 is deemed to have never been valid and the residence card held on that basis is now revoked in accordance with Regulation 27(1) of the Regulations. Therefore, the permission to remain which was granted under the provisions of the European Communities Free Movement of Persons Regulations 2006 and 2008 have now been revoked for the reasons stated above.”

19. In my view it is evident from a reading of the first instance decision of 22 June 2019 and the review decision of 29 March 2022 that, following a review, only the residence card and permission between 16 October 2015 and 22 June 2019 were revoked. This view is further supported from a reading of the second paragraph of the decision which states “the decision to revoke your residence card is affirmed for the following reasons”.

20. It is further clear to me that the decision of 22 June 2019 could not possibly have related to subsequent permissions granted pending the review process as they did not commence until 2020 and given the totality of the review decision of 29 March 2022 neither of the two permissions between 2020 and 2022 pending review were revoked. Neither of such permissions were mentioned at all in the decision of 29 March 2022.

21. In UM (A Minor) v Minister for Foreign Affairs and Trade [2022] IESC 25 the court was dealing with a declaration of refugee status. At para. 45 of the judgment of Dunne J it was stated: – “Both, having regard to the need for certainty in relation to these matters, again, on balance, how could revocation date from any period other than the date of formal revocation of the declaration of refugee status. After all, the Minister is given power ‘if he or she considers it appropriate to do so' to revoke the declaration. If, for whatever reason no revocation has taken place, it is difficult to see how these specific categories could be said to have been revoked prior to a formal decision by the Minister to do so.”

22. In AKS v The Minister for Justice [2023] IEHC 1 (a consideration which was quoted with approval by Burns J in Imran v The Minister for Justice [2024] IECA 83), Phelan J in the High Court considered Article 35 of the 2004 Directive and noted: – “From the language used what appears to be envisaged is a power to terminate rights acquired under the Directive. On my reading the Directive does not require or even permit automatic revocation. I base this view on the fact that Article 35 requires that ‘any such measure shall be proportionate and subject to procedural safeguards provided”

23. In the light of the foregoing there is no basis to support a proposition that a declaration should be afforded that retrospective invalidation of the applicant's EU residence card granted on 16 October 2015 on the basis of Regulation 27(1) of the 2015 Regulations and Article 35 of the 2004 Directive applies equally to any ancillary permission granted on the same basis.

24. Similarly, given that there is no right of residence pending a review under the 2015 Regulations as aforesaid it has not been established that the two permissions between 2020 and 2022 pending the review decision of 29 March 2022 could be classified as “ancillary permissions granted on the same basis”. The applicant has not discharged the onus of proof on him in this regard.

Reasons

25. The applicant argues that the basis for the two temporary permissions pending review is unknown. The review process was not a stand-alone application and was ancillary to the residence card application and therefore granted on the basis of the applicant's marital status. In this regard, as aforesaid, the applicant is seeking a declaration that the failure to give reasons for the granting of the temporary permissions set out in the Statement of Grounds is contrary to law, opaque and a breach of the applicant's constitutional right of access to the courts to have the lawfulness of the respondent's decision determined.

26. In the first instance the concept of reasons was never raised by the applicant or his solicitors with the Minister at any time prior to being included in relief number five of the Statement of Grounds. In submissions the applicant was unable to point to any reference during the review process to reasons for the decision to grant the temporary permissions. When asked why reasons were not raised in advance of the Statement of Grounds it was submitted that it was assumed that same was granted on the basis of the marriage hence the reason why there was no complaint made or query as to the basis for the permissions. Furthermore, it is argued that there is no stand-alone basis for the grant of such permissions.

27. The Minister does retain discretionary power to grant permission to reside in the State and therefore to the extent that it is argued there is no basis for a stand-alone permission this is not accepted.

28. Insofar as it is argued that it was assumed that the basis for the two temporary permissions pending the review of the EU rights was granted on the basis of the applicant's marriage and/or that such permissions were ancillary to the EU residence card granted on 16 October 2015 the following correspondence entertained between the parties in my view does not support this assumption: –

(a) By letter of 13th of October 2014 (the applicant having married on 20 August 2014) solicitors on behalf of the applicant made a written application for a residence card based on the applicant's marriage to the respondent. Reference is made to Article

10 of the 2004 Directive requiring the Minister to issue a certificate of application for a residence card immediately following receipt of the application. Reference was also made to Regulation 7(3) of the European Communities (Free Movement of Persons) (No.2) Regulations 2006 providing that a person the subject matter of an EU treaty rights application may remain in the State pending a decision on the application. It appears that the certificate was sought “within seven days of the date hereof”.

(b) By letter of 3 November 2014 temporary permission was afforded to the applicant by the Minister while the application was pending.

(c) On 17 July 2019 the applicant submitted a review in respect of the decision of 22 June 2019 (the first instance decision finding a marriage of convenience) and requested the Minister to issue a temporary permission to the applicant.

(d) By letter of 17 July 2019 the Minister communicated with the applicant’s solicitor indicating that the review application was received and further indicating that no temporary permission will issue pending the outcome of the review (this appears to have been accepted without demure until the next letter set out hereunder).

(e) On 5 August 2020 the applicant solicitors wrote to the Minister indicating their understanding that the applicant was residing without any immigration permission to evidence his lawful residence in the State. It was indicated that it would be highly appreciated if the Minister would please issue the applicant with a letter for temporary permission to remain in the State for the course of his application process.

(f) The Minister afforded such temporary permission under cover letter of 6 August 2020 with a statement therein to the effect “please note receipt of a Stamp 4 for this period is not an acknowledgement of having an entitlement to residence under EU treaty rights. This will be determined in due course when your review will be either approved or refused.” The temporary permission afforded was to expire on 16 May 2021 (no issue appears to be taken with any portion of this communication)

(g) By letter of 25 May 2021 the applicant solicitors wrote to the Minister to indicate that the prior temporary permission had expired, and they would appreciate if the Minister would please issue a further temporary permission.

(h) On 27 May 2021 the Minister granted the applicant temporary permission valid until 18 February 2022 which also included “this Stamp 4 will enable you to enter employment for this period. Please note receipt of a Stamp 4 for this period is not an acknowledgement of having an entitlement to residence under EU treaty rights.”

29. In my view the foregoing communications from the applicant’s solicitor clearly demonstrates that the applicant's solicitor was aware of the fact that the permission to reside was given at the discretion of the Minister and not because of any right or entitlement of the applicant or obligation on the part of the Minister. The correspondence does not appear to me to support the belief that the two permissions aforesaid were assumed to be based on the applicant's marriage. The Applicant who instigated the securing of the two relevant temporary permissions pending review never sought to clarify the basis for the granting of such permissions which he clearly understood were not available as of right and made under the Minister’s executive discretion.

30. The fact that the Applicant choose not to clarify any further the basis for granting the permissions sought by him and proceeded on the basis of an erroneous assumption (if that is the case) cannot in my view be blamed on the respondent.

31. The only impugned decision in these proceedings is the Scheme review decision of 21 November 2023 and not either of the temporary permission decisions, the latest of which was made on 27 May 2021.

32. By reason of all of the foregoing I am satisfied that the Applicant cannot succeed in having the impugned decision quashed on the basis of an asserted lack of reasons for the granting of the sought temporary permissions which as aforesaid were clearly made by the exercise of Ministerial discretion and in any event as set out above were not revoked by the Minister in the review decision of 29 March 2022. In these circumstances even if the applicant is correct in respect of the reasons there would be no utility in the granting of the declaration sought.

Failure to treat like cases alike

33. This argument is grounded on paras. (e) and (d) of the Statement of Grounds to the effect that other applicants under the Scheme having had findings of a marriage of convenience nevertheless have been granted permission under the scheme and the applicant's position is unreasonably distinguished from those applicants because he appealed against the determination.

34. Clearly, the applicant cannot be considered as being similar to those applicants who had a finding of a marriage of convenience without processing a review and therefore without seeking additional ministerial indulgence for permission to remain in the State pending the review process which constitutes a significant difference. The Applicant is in the same position as MA in Heslin J’s judgment and MA was also refused relief under the Scheme which refusal was upheld by Heslin J.

35. In the circumstances the applicant has not established that the Minister treated like cases differently.

Judicial Comity

36. The applicant has not in any submission, save for the asserted lack of consideration of legal principles to be found in Cooke J's decisions aforesaid, which are of no assistance to the applicant for the reasons set out above, demonstrated any basis to the effect that the decision of Heslin J in MA is any way incorrect. Accordingly in accordance with the principle of judicial comity as discussed in Hughes v Worldport Communications Inc. [2005] IEHC 189, I am happy to follow the decision of Heslin J in MA in all respects and in particular: –

(a) Paragraph 59 to the effect that the Minister gave the applicant two stand-alone temporary permissions pending the outcome of the review;

(b) Paragraph 78 where Heslin J noted that

“[b]oth temporary review permissions were granted (i) after the decision to revoke wherein the Minister found the marriage to be one of convenience;

and (ii) after the applicant had called for a review of that decision.… They did not relate to an application based on marriage but related to the outcome of a review, whenever that might be…. They were not granted because of the marriage. They were granted because of the review.”

(c) Paragraph 82 where the court rejected the applicant’s proposition that the court should imply an intention to revoke the temporary review permission. Heslin J indicated that the respondent could have expressly revoked the review permissions but plainly did not do so.

Conclusion

37. For the reasons herein set out the relief sought is refused.

38. As this judgment is being delivered electronically, I shall address the issue of costs. Given the respondents have been entirely successful, it is my provisional view that they should be entitled to their costs, to be adjudicated in default of agreement. As the parties have not had an opportunity to make submissions as to costs, I shall allow the parties to make written submissions of not more than 1,000 words within ten days of this judgment being delivered, should they disagree with the order proposed. In default of such submissions being filed, the proposed order will be made.