High Court dismisses judicial review where Minister revoked residence card based on false documentation.

[2025] IEHC 647

THE HIGH COURT

[2023/582 JR]

BETWEEN:

ZAHOOR UN NISA

APPLICANT

AND

THE MINISTER FOR JUSTICE

RESPONDENT

JUDGMENT of Mr. Justice Barry O’Donnell delivered on the 21st day of November, 2025

INTRODUCTION

1. This judgment concerns an application for relief by way of judicial review where the applicant seeks a partial order of certiorari quashing elements in a decision by the respondent to revoke the applicant’s residence card.

2. The decision under review was made pursuant to the European Communities (Free Movement of Persons) Regulations 2015 (the Regulations) which transpose Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (the Directive).

3. The applicant, who is not a citizen of the EU, had been granted a residence card in 2016 on foot of her marriage to an EU citizen. In September 2020, the respondent wrote to the applicant setting out certain concerns relating to the applicant’s marriage and documentation that she had submitted. That triggered a process of correspondence and decisions that culminated in the decision now under review, which was made on the 20 February 2023. As part of the decision under review, the respondent set aside a first instance decision which had found that the applicant had entered into a marriage of convenience, but affirmed the part of the decision that held the applicant had submitted and sought to rely on documentation and/or information that she knew to be false and/or misleading in order to obtain a derived right of free movement and residence under EU law to which she was not otherwise entitled.

4. The case made by the applicant had certain unusual features. The applicant has been granted international protection and hence does not face any immediate risk in terms of a requirement to leave the State. In addition, the applicant through her legal representatives accepted from a relatively early stage that it was open to the respondent to revoke her residence card. However, this was on the basis that the EU citizen from whom her rights were derived left the State in 2019. The position of the applicant was that the finding that she had submitted information or documentation that was false and/or misleading was not properly reached and ought not to have grounded the decision to revoke her residence card. In practical terms, the applicant was concerned that this finding might jeopardise any future application for naturalisation that she may wish to make. The applicant also highlighted that, from her perspective, part of the decision was based on a construction of certain 2019 tax return documents that she had submitted, but which omitted a critical page that shed light on the overall contents of the document. The approach adopted by the respondent was said to have demonstrated a general want of care and attention.

5. For the reasons set out below, the court has decided that the application should be refused.

PRELIMINARY ISSUES

6. Before addressing the substantive issues, there are two preliminary issues that can be addressed:

7. First, the applicant in her written legal submissions argued that the respondent had not complied with the duty of candour required of respondents in judicial review proceedings. The court was informed at the outset of the hearing that this point was no longer being pursued, and hence it is not necessary to comment further on the issue, save to observe that it was not at all apparent that there was any valid issue relating to candour in this case.

8. Second, the application for leave to apply for judicial review was out of time, albeit by a short margin. The applicant sought to explain and justify the situation and sought an extension of time, which was opposed by the respondent. At the hearing, the respondent, fairly, did not press the point strongly but likewise did not formally abandon it. I am satisfied that it is appropriate to allow the extension of time in this case.

9. As noted above, the decision was made on the 20 February 2023. Pursuant to Order 84, rule 21, this application ought to have been commenced on or before the 20 May 2023. In fact, the proceedings were filed and the application opened on the 25 May 2023. The explanation for the delay was set out in affidavits sworn by the applicant and her solicitor. The applicant stated that she formed the intention to bring the proceedings shortly after the decision was made. The applicant’s solicitor averred that her office engaged in some pre-action correspondence and then sought to instruct counsel. The counsel originally instructed was not able to deal with the case, and as a result an alternative counsel was instructed on the 17 May 2023 with a brief of over 500 pages of materials.

10. An extension of time is not there for the asking; the relevant rules require the applicant to show good and sufficient reason for granting an extension, and that the circumstances that resulted in the failure to make the application within the 3 month period either were outside the control of the applicant or could not reasonably have been anticipated by the applicant.

11. It is true that applications for judicial review of decisions of the type concerned in this case are subject to the ordinary time periods set out in the RSC and do not fall within the category of case where the Oireachtas has provided for shorter time periods. Nevertheless, the reality is that where, as occurred in this case, a party was represented throughout the process that led to a decision that she seeks to review, and where the subject matter and underlying materials are relatively straightforward, there is very little justification for not complying with the time limits. In particular, while there always is merit in a party seeking to resolve a dispute without the need for litigation, the case law is clear that the time will run from the date of the

decision and that seeking to engage in correspondence does not stop the clock.

12. In my view the appropriate justification for an extension in this case is that the counsel who originally was instructed was not able to take the brief and this meant that a new barrister had to be instructed and then prepare papers. That process, while late in the day, was carried out with obvious expedition. In the premises, I am satisfied that the difficulties with counsel – but not the attempts to engage in correspondence – amount to good and sufficient reason in this case for a short extension of time. I am similarly satisfied that the difficulties with the original counsel are matters that could not reasonably have been anticipated by the applicant.

BACKGROUND

13. Before outlining the evidence that formed the backdrop to this decision it is important to record the starting point for the impugned decision. This is important because while the applicant sought to highlight what she saw as flaws in the process, the respondent in the impugned decision framed the analysis in clear terms. The officer from the respondent’s EU Treaty Rights Review Unit explained in the decision: “As set out above, it is apparent that the Union citizen in this case has not exercised his EU Treaty Rights in the State in recent years, at least since 2016. The Minister notes, in particular, that you now state that you are no longer in a relationship with Mr Turcan and, in respect of your international protection application, you advised that the Union citizen is now residing in the UK. You have not provided any evidence that the EU citizen has been exercising Treaty Rights in Ireland in accordance with Regulation 6(3) of the Regulations in recent years. The right of third country national family member to accompany or join an EU citizen in a host Member State is a derived right that depends on the EU citizen residing in the State in exercise of his or her EU treaty Rights in accordance with the provisions of the Regulations and the Directive. As the EU citizen in this case is not exercising his Treaty Rights in the State, you do not have an entitlement to a derived right of residence.”

14. The applicant is a national of the Islamic Republic of Pakistan. While she was residing in the UK as a student, she married Vasile Turcan on the 14 May 2014. Mr. Turcan is a Romanian citizen. In June 2015, the applicant and Mr. Turcan moved to Ireland and the applicant was granted a residence card on the 5 March 2016.

15. The respondent wrote to the applicant on the 24 September 2020 setting out concerns. The letter explains that when the applicant sought her residence card she submitted documents to show that she was residing with her husband, and documents to show that her husband was exercising his rights through self-employment in the State. The letter noted that information had been obtained from the UK. In December 2014, the relevant UK authorities had refused to grant the applicant a residence card because they deemed her marriage to Mr. Turcan to be “a sham”. The applicant appealed that decision, but the matter did not progress because the applicant left the UK.

16. The letter also noted by way of background that the information from the UK recorded that the applicant had resided at the same address as a Mr. Shahzad. Mr. Shahzad was also recorded as residing with the applicant and Mr. Turcan at their address in Ireland, and was recorded as the father of a child with the applicant who had been born during the currency of her marriage to Mr. Turcan. The letter went on to make a finding that the marriage of the applicant and Mr. Turcan was not a genuine marriage. As noted above, the review decision did not uphold the marriage of convenience finding and that issue is not material to these proceedings, but is set out as background information.

17. In relation to Mr. Turcan’s exercise of Treaty rights within the State, the 24 September 2020 letter identified a number of concerns, based on records available from the Department of Employment Affairs and Social Protection (DEASP). The letter noted that, as a sole trader / self-employed person, Mr. Turcan was obliged to (a) pay tax under the self-assessment system on or before the 31 October each year, (b) make a tax return not later than the 31 October following the end of the tax year, (c) keep accounts recording certain business matters and to keep supporting records for those matters, and (d) pay Class S PRSI on amounts earned over €5,000 in any one year, and USC on gross income of more than €13,000 per annum.

18. Against the backdrop of that statement of obligations – which was not contested by the applicant at any stage – the letter noted that Mr. Turcan had made 52 Class S contributions for the year 2016, but apart from that there were no records of income or earnings for that year and no other records of employment, income, or earnings for Mr. Turcan in the State. In 2019, Mr. Turcan claimed job seekers allowance from the 9 May 2019 to the 30 July 2019, and the record then noted “applicant is abroad”. Finally, it was asserted, the applicant had provided evidence of calculated revenue assessments for Mr. Turcan, but had not provided evidence of the payment of his liabilities or that he complied with any of the obligations connected with activity as a sole trader.

19. The letter went on to note that DEASP records showed that the applicant herself had recorded earnings for the years 2016 to 2020. However, the letter pointed out that the applicant had to show that Mr. Turcan was exercising his rights and not that the applicant was employed.

20. Arising from that, the letter expressed the opinions that (a) the applicant had not informed the Minister of the change in her relationship with Mr. Turcan, as required by regulation 11(2) of the Regulations, and that this was a deliberate attempt to maintain a permission to remain which she knew to be invalid; (b) given the lack of recorded activity for Mr. Turcan the respondent was not satisfied that he was residing in the State in exercise of his rights.

21. As a consequence of the above, the Minister had formed the opinion that Mr. Turcan’s self-employment was contrived to facilitate the successful completion of the applicant’s EU residence application. In addition, the Minister found that the information provided by the applicant to evidence her and Mr. Turcan’s residence in the State was false and misleading. Further, the evidence that Mr. Turcan was exercising his EU Treaty rights in the State was false and misleading.

22. The applicant was afforded 21 days to respond and make submissions as to why her permission to remain should not be revoked. The letter noted, inter alia, that a detailed immigration history should be provided addressing dates of travel to and from the State from 2015 to present, along with a detailed relationship history, together with “any other information / documentary evidence” that the applicant wished to submit.

23. It would be fair to note at this point that the applicant could not have been under any real misapprehension as to the matters that she needed to clarify to assuage the concerns of the Minister, and that a significant issue related to the question of whether Mr. Turcan was exercising his EU Treaty rights in the State between 2015 and 2020.

24. Thereafter, the applicant through her lawyers engaged in extensive correspondence with the Minister’s EU Treaty Rights Unit. That correspondence commenced on the 5 October 2020 and matters were complicated by Covid 19 restrictions. The substantial response to the 24 September 2020 letter was a letter from the applicant’s legal representatives on the 14 October 2020. A volume of documentation was sent on concerning the issue around the applicant’s marriage, including documents that were said to evidence the parties sharing income and outgoings between 2015 and 2019. As part of the narrative, it was noted that although Mr. Turcan was operating a business he encountered stressful financial difficulties.

25. The applicant accepted that the UK authorities had determined her marriage to be one of convenience and she sought to explain why she did not pursue her review / appeal in that jurisdiction. Relatedly, she sought to explain that there was nothing untoward in her providing assistance to Mr. Shahzad who was said to be a distant non-blood relation, in circumstances where she and Mr. Turcan sought to share expenses with Mr. Shahzad and his partner. The applicant accepted that she and Mr. Shahzad had an extra-martial affair that resulted in the birth of her child, and she sought to explain that this occurred during a difficult period in her marriage and that she and Mr. Turcan resolved the difficulties that this generated.

26. In relation to the relationship with Mr. Turcan, the applicant accepted that he left the State on 30 July 2019, but that they remained in contact and the marriage subsisted; some Facebook messenger records were attached to that part of her narrative. However, the applicant fairly accepted that, on the basis that Mr. Turcan had left the State, the Minister was entitled to revoke her residence card. Perhaps understandably, the main focus of the letter was on seeking to rebut the suggestion that the applicant had entered a marriage of convenience with Mr. Turcan. However, this meant that the narrative and documentation relating to the question of whether Mr. Turcan was exercising Treaty rights in the State between 2015 and 2019 was somewhat sparse.

27. In relation to the information about Mr. Turcan’s exercise of Treaty rights, the applicant asserted that Mr. Turcan operated an electronic repairs business from 2015 until 2019. The business ran into financial difficulty in 2019, and he applied for job seekers allowance for approximately six weeks in the summer of 2019. The applicant requested sight of the DEASP documents and information that had been referred to in the 24 September 2020 letter.

28. The applicant asserted that Mr. Turcan’s business was real and not contrived, and noted that in 2016 Mr. Turcan made 52 S Class contributions. It was asserted that it was irrational for the Minister to conclude that Mr. Turcan was not residing in the State on the basis that the applicant had not provided evidence of his revenue assessments. The applicant in any event provided copies of Mr. Turcan’s Self-Assessment of Income Tax returns for his business for the periods ending 31 December 2018, 31 December 2017, 31 December 2016 and 31 December 2015, along with a PAYE / USC Statement of Liability for the tax year 2019. It was asserted that this information showed income being earned during the relevant period and that Mr. Turcan was exercising EU Treaty rights.

29. In relation to the documents that were produced and then exhibited by the applicant, it is notable that the self assessment documents for the year ending 2018 attribute whatever income was earned to “emoluments – spouse”, suggesting that Mr. Turcan did not have any of his own earnings in that period. On the other hand, there were documents suggesting Mr. Turcan’s presence in the State at certain points, including a hospital receipt from January 2016.

30. The applicant’s solicitors wrote a further letter on the 18 November 2020 enclosing more documents. These included a letter dated the 19 October 2020 from the landlord of their property which stated that the couple had rented an apartment from the 12 June 2015, and that the landlord knew their relationship to be “marriage-like”. There was also a type-written note from Mr. Turcan that appears to have been signed on the 31 October 2020 which only addressed the marriage issue.

The first instance decision

31. The first instance decision was made by the respondent and set out in a letter dated the

9 December 2020. The letter set out the general background and acknowledged the documents and information submitted by the applicant. The letter made a finding that the marriage to Mr. Turcan was one of convenience. In relation to the question of whether Mr. Turcan was exercising EU treaty rights, the letter asserted that the concerns expressed in the 24 September 2020 letter had not been assuaged. The letter noted: “While you have once again provided evidence of calculated revenue assessments in respect of Mr Turcan’s alleged self employment You have not provided evidence of the payment of these calculated liabilities or that in his capacity as a sole trader Mr Turcan has complied with any of the above obligations [referring to the obligation to maintain books and records relating to the business].”

32. The letter went on to note certain issues regarding the operation of Mr. Turcan’s business. The letter noted that the business was recorded as having ceased trading on the 18 December 2018, and raised an issue relating to the 2019 returns submitted by the applicant which appeared to show that the business earned over €12,000 in that period. As discussed later, this appears to have been based on a misunderstanding of the nature of the return document, albeit a misunderstanding that must be attributed to the applicant. I will discuss this further later in the judgment.

33. Significantly, the letter reiterated that while the applicant had DEASP records of earnings in the State, Mr. Turcan had no official record of income or earnings with the DEASP. The Minister concluded that Mr. Turcan was not exercising EU Treaty rights in the State and that by submitting information and documents that sought to show the contrary the applicant had submitted false and misleading information. The decision was made to revoke the applicant’s right of residence on the bases that (a) the marriage was one of convenience and (b) the applicant had not shown that Mr. Turcan was exercising EU Treaty rights in the State and had submitted false and misleading information in that regard. The applicant was informed of her right to have that decision reviewed pursuant to regulation 25 of the Regulations. The applicant later was afforded temporary permission to reside in the State pending the outcome of the review process.

The response to the first instance decision

34. The applicant’s response was set out in a number of letters from her solicitors. The initial response was made by letter dated the 22 December 2020 which set out legal arguments and enclosed the review form, Form EU4, together with supporting documents. Again, significant emphasis was placed on the marriage of convenience question, which is no longer a live issue. The submissions in the letter in relation to the exercise of EU Treaty rights were connected to the following grounds for review set out in the Form EU4:

“1) The Minister cannot meet the burden of proof herein

2) The decision herein is based on irrational and illogical observations 3) The decision herein takes irrelevant factors into account and does not take relevant factors into account 4) Please see covering letter for additional grounds”

35. The cover letter contained requests for copies of all DEASP documents relating to Mr. Turcan. The applicant argued that the fact that the EU citizen from whom the right to reside was derived had low earnings was irrelevant. This was based on the proposition that the EU rights must be exercised and not that income reached a particular threshold level. The applicant reiterated the documents that already had been submitted. In relation to the low earnings point, the applicant also asserted that as a matter of EU law it was irrelevant that Mr. Turcan may have been supported by the applicant so long as he was not a burden on the Irish social assistance system.

36. A further letter was submitted on behalf of the applicant on the 10 March 2021, which enclosed a letter from the landlord of the apartment where the applicant lived. This stated that the apartment was rented from the 12 June 2015 and was registered with the PRTB. The landlord stated his belief that the applicant and Mr. Turcan were a married couple. The landlord stated that he knew that the apartment address was used as the address for Mr. Turcan’s business but that he understood that Mr. Turcan travelled to client’s homes to carry out IT repair work. He stated that Mr. Turcan lived at the apartment until July 2019.

37. The solicitors also submitted Freedom of Information requests to the DEASP and the Revenue Commissioners. The Revenue Commissioners released four records on the 2 April 2021 on behalf of Mr. Turcan. The DEASP responded on the 1 April 2021.

38. On the 9 April 2021 the applicant’s solicitors submitted a statutory declaration from Mr. Shahzad in which he accepted that he had been in a brief extra marital relationship with the applicant, but rejected the contention that they had engaged in a more substantial personal relationship.

39. On the 10 August 2021, the applicant’s solicitors addressed the documentation received from the Revenue Commissioners. The letter asserted that the documents from the Commissioners showed that the applicant and Mr. Turcan submitted joint assessments, and that the documentation “indicates use of machinery, plant, capital allowances, sales, receipts, turnover, purchases, expenses, and deductions in line of consultancy/professional fees, motor expenses and depreciations.” It can be noted that while those items may be indicated in the return, the applicant did not provide evidence to support them in the form of any other documents.

40. The letter also stated that the documents indicated that Mr. Turcan made gross trading profits in the amount of €1,488 in 2015, €11,104 in 2016, €0 in 2017, and a net loss of €1,210 in 2018. This was stated to constitute evidence that Mr. Turcan was exercising Treaty rights during those periods. Thereafter the letter reiterated the points already made about Mr. Turcan being supported by the applicant’s earnings.

41. The applicant was granted refugee status, and this was notified to the applicant on the

21 July 2022. Shortly thereafter, on the 8 August 2022, the applicant’s solicitors wrote to the respondent’s EU Treaty Rights Review Unit to state that the applicant and Mr. Turcan had now separated, and that she had been granted international protection. Nonetheless the applicant wished to pursue the review “to clear her name”.

42. On the 9 February 2023, the applicant’s solicitors wrote to the respondent updating certain information and noting that the review decision was still pending, and requesting a

decision within 12 weeks. As it happened, the review decision which is the subject of this application issued and was dated the 20 February 2023.

THE REVIEW DECISION UNDER CHALLENGE

43. The decision was structured by setting out the history of the matter and the first instance

decision. The decision made clear that, having considered all the information and submissions, the Minister determined that there was insufficient evidence to support the finding that the marriage to Mr. Turcan was one of convenience, and that finding was set aside. The decision then turned to the question of the exercise by Mr. Turcan of his EU Treaty rights, and noted the course of events that to the finding of the deciding officer.

44. In relation to the documents and submissions that have been set out above, the Minister noted that according to the DEASP records, there was no record of employment, income or earnings since 2016. Save for the brief period when he received jobseekers allowance, there was no record of Mr. Turcan engaging in any economic activity in the State.

45. The business operated by Mr. Turcan was registered in December 2015 and ceased trading in December 2018. There was no record that Mr. Turcan engaged in economic activity after 2018. The Minister noted that while the business ceased trading in 2018 the applicant had submitted a statement of tax liability for Mr. Turcan that indicated income of €12,433 for 2019.

46. The Minister, in effect discounted the self-assessed revenue submissions. This was on the basis that (a) the assessments were not reflected in DEASP records, and (b) there was no evidence that any amounts were actually paid. The Minister noted that the applicant had been advised on a number of occasions that as a self-employed person Mr. Turcan had obligations inter alia to maintain certain records, but no evidence had been submitted to show that Mr. Turcan had complied with his obligations.

47. The Minister noted that the deciding officer had found that the alleged self-employment was contrived to facilitate the applicant’s EU treaty rights application, and that the submission of Mr Turcan’s self-assessment forms was false and misleading as to a material fact. The Minister found that there was a contradiction between the DEASP information and the information submitted by the applicant. The Minister preferred the information from the DEASP and could not be satisfied that Mr. Turcan was self-employed in the State. For that reason, there was a finding that the applicant had submitted information and documents “with the intention of misleading the Minister into thinking that the EU citizen was working in Ireland when this was not the case.”

48. Accordingly, the Minster made findings that the applicant submitted and sought to rely on documentation and/or information that she knew to be false and/or misleading in order to obtain a derived right of free movement and residence under EU law to which she would not otherwise be entitled. That was an abuse of rights under regulation 27 of the Regulations. The Minister decided that the applicant’s right of residence should be revoked, but not retrospectively. The revocation was to take effect from the 9 December 2020.

49. Following the decision, the applicant’s solicitors wrote to the Minister on the 22 March 2023 to say that the applicant had provided them with further updated instructions in relation to the 2019 statement of tax liability. The letter stated that the applicant had realised that the back page of the document had not been provided, and that the page in question made clear that income for 2019 referred to was income attributed to her employment and not that of Mr. Turcan. In light of that error, and on the basis of the applicant’s understanding that the 2019 income issue was the main contributor to the finding that false and misleading information had been submitted, the applicant requested the Minister to reconsider the decision. It does not appear that the Minister responded to that correspondence and as noted above the proceedings were commenced.

RELIEFS AND GROUNDS OF REVIEW

50. As noted above, the applicant made the initial application for leave on the 25 May 2023, and was granted leave to apply for judicial review on the 15 April 2024. The following substantive relief is sought: “An Order of partial Certiorari of the decision letter of the Respondent dated the 20th of February 2020 revoking the Applicant’s residence card on the basis that the Respondent concluded the Applicant had submitted information that was false and misleading as to a material fact in support of her claim to be entitled to a residence card based on EU Treaty Rights. The portion of the impugned decision which the Applicant seeks to quash herein are as follows beginning at p.2 of the decision:”

51. Thereafter the applicant quotes from the decision letter of the 20 February 2023, in essence setting out the part of the letter that dealt with matters other than the marriage of convenience issue.

52. The relevant legal grounds on which the relief was sought can be summarised as follows. a. The decision that the applicant submitted false or misleading information was irrational. This ground is comprised of three elements: i. With respect to the issue around the 2019 return, it should have been clear to the respondent that this was a joint return. ii. The respondent did not identify any material that was alleged to be false or misleading.

iii. There was no contradiction between the DEASP sourced

information and the Revenue documentation. b. The respondent did not take proper account of the Revenue returns made on behalf of Mr. Turcan for 2017, 2018, and 2019, which showed jointly assessed spousal income. c. The conclusion that the applicant submitted false and misleading information was not properly reasoned.

53. In her written submissions the applicant framed the issue by reference to three questions, which I have slightly reworded: a. Was the conclusion that the applicant submitted information or documentation that was false and misleading as to a material fact irrational, ultra vires or disproportionate? b. Did the respondent fail to take relevant factors into account in reaching that conclusion? c. Did the respondent provide adequate reasons for the conclusion?

THE RESPONDENT’S POSITION

54. The respondent filed a statement of opposition on the 7 November 2024, which was supported by affidavits sworn on the 5 November 2024 and the 9 May 2025 by Katherine Grace, an Assistant Principal Officer in the EU Treaty Rights Division of the respondent’s department.

55. The statement of opposition recorded a preliminary point, now resolved, regarding the application for an extension of time. Principally it stood over the respondent’s decision-making process. With regard to the legal grounds agitated by the applicant, the respondent highlighted that the issue around the 2019 revenue documents was the result of the applicant’s own failure to provide relevant documents to the respondent. Save in those respects the statement of opposition amounted to a traverse of the matters asserted by the applicant.

56. Ms Grace’s first affidavit exhibited the applicant’s initial application for a residence card, a Form EU1. Other than setting out essential personal information in relation to Mr. Turcan, the applicant does not describe or provide any evidence regarding Mr. Turcan’s activity within the State. The second affidavit took issue with the contention raised by the applicant’s written submissions that the respondent failed to comply with its duty of candour. Ms. Grace noted that the applicant had obtained materials by way of Freedom of Information requests from DEASP and the Revenue Commissioners. Ms. Grace went on to exhibit the DEASP and CRO documents that had been provided to the respondent concerning the applicant and Mr. Turcan.

ARGUMENTS

Unreasonableness

57. The irrationality argument made by the applicant was premised on the assertion that the principal issue identified by the Minister related to the apparent representation in the 2019 Revenue document that Mr. Turcan had not ceased his work in 2018. The applicant suggested

(a) that the respondent did not identify any other material that could be treated as false or misleading, and, separately, (b) that the decision-making process was circular in the sense criticised by Ferriter J. in R.A. v Minister for Justice [2022] IEHC 378. The applicant argued that even though the applicant was responsible for not submitting the final page of the 2019 Revenue document – which clarified that it was a joint return and that the relevant earnings related to the applicant’s employment and benefits – the respondent ought to have been aware of the issue, mainly because it was clear that the applicant and Mr. Turcan had submitted joint assessments previously.

58. In addressing this aspect of the case, the respondent highlighted that the decision had to be made by reference to the materials before the decision-maker and that the decision was one that was reasonably open to the decision-maker.

59. The respondent did not agree with the extent of the focus that was placed on the 2019 revenue document. The argument was that throughout the process the respondent had been clear that the applicant was required to put forward evidence that Mr. Turcan was exercising his EU Treaty rights in this State during the period under consideration, being 2015 to 2020. Moreover, the respondent had identified to the applicant the types of documents or information that ought to have been provided. The respondent emphasised that notwithstanding the extent of the submissions made on behalf of the applicant through out the process, very little actual documentation was provided, that documentation was self-generated, and no other corroborating evidence was provided.

60. The respondent rejected the suggestion that the decision was circular, and considered that the case better resembled the situation addressed in S.S.A. v Minister for Justice [2023] IEHC 32.

Did the respondent take account of irrelevant material or fail to have regard to relevant material?

61. In relation to this limb of her case, the applicant’s argument was closely connected to the irrationality argument. Once again, the applicant appeared to proceed on the basis that the treatment of the 2019 Revenue document by the respondent – which was interpreted as the applicant submitting that Mr. Turcan’s business generated income after it had ceased trading – was the critical foundation for the finding that the applicant had submitted false or misleading information. The argument under this heading was that the respondent thereby failed to take account of the evidence that the applicant and Mr. Turcan had been jointly assessed and that the income listed in the tax returns for 2017, 2018, and 2019 was income generated by the applicant herself.

62. The respondent started from the by now well established position that G.K. v Minister for Justice [2002] 2 IR 418 makes clear: where a decision maker explains that they have considered all the material submitted, that statement must be taken as correct and true unless there is evidence to suggest that it is not. The respondent submitted that a fair reading of the

decision does not disclose any failure on the part of the decision maker to consider the materials submitted by the applicant.

63. The respondent pointed to the fact that the applicant herself submitted the various Revenue statements with a view to establishing that Mr. Turcan was exercising EU Treaty rights within the State, and did not in any sense emphasise that the assessments were joint assessments; and that, for the most part, the income recorded in those forms was income that she had generated. In addition, the point was made that the respondent consistently had made clear that what was sought was a record of Mr. Turcan’s economic activity in the State. The point being that when compared with the DEASP records the Revenue self-assessment returns on their own were not considered as sufficient evidence to demonstrate that Mr. Turcan was exercising his EU Treaty rights. What had been sought was further or supplementary information and documents that could corroborate the information asserted in the selfassessment returns; but no such documents were forthcoming.

Adequacy of reasons

64. Under this heading the applicant submitted that it was not clear from the decision why the respondent considered that there was a contradiction between the DEASP records and the Revenue documents. In addition, it was not made clear what information or documentation was considered to be false and misleading. Finally, an argument was made that in framing the

decision the respondent failed to engage in the submissions that had been made to the effect that even if Mr. Turcan was being supported financially by the applicant this did not mean that he was not exercising his EU Treaty rights within the State.

65. The respondent framed its response by reference to the well known observations by Clarke C.J. in Connelly v An Bord Pleanála [2018] IESC 31. That judgment explains what level of reasoning required, which is that a person has an entitlement to know in general terms why the decision was made. It also explains why that level of reasoning is required, which is so that the person affected can make an informed decision whether they should appeal or seek judicial review of the decision. Put briefly, the respondent strongly contested the suggestion that the reasons given for the decision were inadequate.

DISCUSSION

General applicable principles

66. The starting point for analysis here is that the Minister expressly is empowered to adopt measures to terminate or withdraw rights conferred by the Directive in cases of abuses of rights or fraud. Regulation 27(1) of the Regulations provides that the Minister: “may revoke, refuse to make or refuse to grant… where he or she decides, in accordance with this Regulation, that the right, entitlement or status, as the case may be, concerned is being claimed on the basis of fraud or abuse of rights:

…

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

67. It is well established that in the general context of the situation in which the applicant found herself the burden of proof rests on her to satisfy the respondent that the relevant criteria were met.

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

69. The Court of Appeal also has distinguished between statements or assertions made by or on behalf of an applicant and the vouching or supporting document provided to support those assertions. Hence, in Abbas v. Minister for Justice and Equality [2021] IECA 16, the Court of Appeal, dealing with a “permitted family member” dependency claim, made it clear at para. 82 that the Minister requires to be provided with supporting or vouching documentation in relation to the matters asserted therein. As noted by Binchy J.: “While the statements are necessary in order to provide the [Minister] with essential background information relating to the Application, and to give a context to assist in explaining supporting or vouching documentation provided by an applicant, it is really only the latter documentation that constitutes evidence i.e. it is evidence provided in support of the factual background relied upon by an applicant in his supporting statement(s).Without such supporting or vouching documentation, the [Minister] would have great difficulty adjudicating favourably upon an application for residency.”

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

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

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

73. As noted above, the applicant is not contending that she was entitled to retain her residence card. Instead, she is concerned with the finding that she submitted false and misleading documentation.

Adequacy of reasons

74. In relation to the three substantive questions posed by this case, the reasons argument can be dealt with relatively briefly. I am satisfied that adequate reasons were given for the

decision in this case. This is apparent from the review decision itself, and reinforced in light of the prior correspondence between the parties. The applicant had been informed in very clear terms that the Minister was not satisfied that there was sufficient evidence that Mr. Turcan had been exercising his EU Treaty rights in the State. That was based primarily on the information from the DEASP which strongly supported the contention that while he may have completed and submitted documents to the Revenue Commissioners, those documents were not consistent with the actual position in terms of the DEASP records.

75. The applicant was made aware of the issues that had been raised in the first instance

decision and had legal representation. She was afforded the opportunity to address the concerns in the review decision. The representations made did not satisfy the respondent and a finding was made that the information she provided did not dispel the concerns. It was clear from the review decision that the respondent considered that, insofar as the applicant sought to persuade the respondent that Mr. Turcan was exercising his Treaty rights, this was contradicted by the evidence available from the DEASP. Moreover, the respondent had let the applicant know what type of information or documents could be expected to have been generated by a person operating a business in the State, even if that business was not thriving. No such documents were presented.

76. Against that backdrop, it seems to me that the decision could be clearly understood by a reasonable reader. There was insufficient evidence that Mr. Turcan was exercising EU Treaty rights in the State, and an insufficient record of his engaging in any economic activity. The respondent effectively was not persuaded that the self-generated Revenue documents were sufficient to meet the concerns or actually accurate. That being so, there was a finding that insofar as the applicant produced documents and made statements to show that Mr. Turcan was exercising EU Treaty rights in the State – when it was found that he was not – this amounted to the submission of false and misleading information.

77. I am therefore satisfied that the applicant was provided with sufficient reasons to understand why the respondent made the review decision and was equipped with reasons that were adequate to enable her to make a decision to challenge that decision. Moreover, the applicant did in fact challenge the decision on grounds which went beyond a challenge to the adequacy of reasons.

Relevant considerations

78. On the question of whether the Minister failed to take proper account of the fact that the Revenue self-assessment documents related to joint returns, I consider that this is unfounded. First, the respondent stated that all materials and submissions were considered, and this included a mention of the joint assessment and the claim made by the applicant that she had provided support to Mr. Turcan. Having regard to the full text of the decision, there is no reason for the court to consider that relevant factors were ignored.

79. Secondly, the applicant, for reasons explained below, was incorrect to consider that the 2019 Revenue document was treated as somehow determinative or of central importance to the

decision. While it certainly was relevant, in my view it was just one of a number of matters identified by the respondent. The point was not whether the applicant and Mr. Turcan were jointly assessed for tax purposes or even that the applicant may have provided some material support to Mr. Turcan because his business was not successful. The critical point was that, with the exception of the Class S contributions in 2016, the DEASP records did not show that Mr. Turcan was engaged in economic activity in the State. Despite being afforded an opportunity to do and being informed of the type of material that would be required, the applicant simply did not produce sufficient material to answer the concerns raised by the DEASP records.

Reasonableness

80. On the broader reasonableness argument, I consider that the applicant is incorrect in seeking to frame the decision as one that pivoted on the treatment of the 2019 revenue documents. When the decision is read as a whole and in the light of the correspondence, first instance decision and submissions made to the respondent as part of the review process, it is clear that the decision was based on far more than the treatment of the 2019 Revenue documents. That being said, it must be highlighted that the burden was on the applicant to make whatever submissions and to provide whatever corroborative material she considered appropriate. The applicant submitted the incomplete 2019 Revenue document, and did so in the context of an attempt to persuade the Minister that Mr. Turcan was a person who was exercising EU Treaty rights. Insofar as it was not fully clear what income was attributable to which spouse on a joint assessment form, this is something that should have been clarified by the applicant.

81. More broadly, it was fully clear to the applicant that the starting point for the respondent’s concerns was that the DEASP records showed that, with the exception of the Class S contributions in 2016, there was no evidence that Mr. Turcan had engaged in economic activity in the State after that point. The respondent identified the type of documents that ought to have been generated by a small business, but it appears that the applicant did not produce any such documents. The only material that was relied on by the applicant to show that Mr. Turcan was exercising his treaty rights was self-generated Revenue self-assessment forms. Hence, even if Mr. Turcan’s business was experiencing financial difficulties and he was relying on the applicant for financial support, the evidence that he was in the State and seeking to carry out any economic activity after 2016 was extremely sparse to the point of being quite unconvincing.

82. It is significant that this is not a case in which there was any suggestion that the breakdown in the applicant’s relationship with Mr. Turcan in or around the time when she was granted refugee status meant that she was unable to access documents or materials about his exercise of EU Treaty rights. Instead, the applicant submitted statements from Mr. Turcan that suggested there was no difficulty in that regard.

83. In my view the review decision could not be seen as unreasonable. The Minister was entitled to raise concerns about whether Mr. Turcan was exercising his EU Treaty rights, and based on the DEASP records there was a basis for those concerns. Despite the lengthy process involved, the applicant ultimately produced next to no independently verifiable evidence that Mr. Turcan engaged in any economic activity in the State for a considerable period. In the premises, it was reasonably open to the respondent to find that Mr. Turcan was not exercising his rights during that period. That being so, it was open to the respondent to find that the applicant had submitted information and documents (the Revenue documents) that were false and misleading.

84. The court is not satisfied that the decision in this case suffers from the infirmity identified in R.A. v. Minister for Justice. That was a case in which the Minster had found a marriage of convenience, and 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.”

85. The situation here is plainly distinguishable. The documentation submitted by the applicant as support for the claim that Mr. Turcan was exercising Treaty rights in the State was inconsistent with the information provided by the DEASP. There was a clear contradiction between the DEASP record of Mr. Turcan’s activities and Revenue documents and submissions made in that regard. The reasoning of the Minister in this case was not circular. Instead, the

conclusion flowed from factual findings about the nature of the evidence submitted by the applicant. The subsequent finding was that the information submitted was false and/or misleading.

86. In the premises the application for judicial review will be refused. As this judgment is being delivered electronically, my provisional view is that the respondent is entitled to the costs of the proceedings to be adjudicated in default of agreement. I will list the matter before me for final orders and for any argument that the parties may wish to make regarding costs at 10.30am on Thursday, the 4 December 2025.