High Court dismisses deportation challenge where residence rights revoked due to fraud and EU law not applicable.

THE HIGH COURT

[2026] IEHC 112

RECORD NO: JR 2024/1284

BETWEEN:

F.A.Y. (NIGERIA) (No. 2)

APPLICANT

and

THE MINISTER FOR JUSTICE

RESPONDENT

JUDGMENT of Ms Justice Nessa Cahill delivered on 25 February 2026

OVERVIEW

1. The central question in this case is whether the Minister for Justice (“the Minister”) erred in concluding that the Applicant was lawfully resident in the State on specified dates during the four-year period from 31 January 2018 to 31 January 2022. The significance of this question lies in the fact that it is only if the Applicant was undocumented for that continuous period that he would be eligible to avail of an administrative scheme that was put in place by the Minister to regularise the status of long-term undocumented residents in the State.

2. The answer to this question hinges in turn on the status of certain temporary permissions to reside in the State that were given to the Applicant while he was challenging a refusal to grant him a residence card. The Applicant contends that all rights to reside (including temporary rights) were rendered invalid from the outset when his residence card was revoked, such that he was never lawfully resident in the State and meets the criteria of the Scheme.

3. An alternative argument advanced by the Applicant is that, if he was lawfully resident in the State, this was on the basis of rights conferred by the EU law and he cannot now be deported under domestic law.

BACKGROUND

4. The events and their precise chronology are not substantially in dispute and are important in these proceedings. The relevant dates and events are set out here:

- The Applicant was born in Nigeria in 1982.

- On 23 October 2009 the Applicant arrived in the State and applied for asylum.

- On 17 November 2009, the asylum application was refused and the Applicant was informed of his right to appeal but did not exercise that right.

- On 11 January 2010 he gave notification of an intention to marry Latvian national who was resident in the State.

- On 28 January 2011, the marriage took place.

- In April 2011, the Applicant applied for a residence card as the spouse of an EU national pursuant to the European Communities (Free Movement of Persons) (No 2) Regulations 2006 (“the 2006 Regulations”).

- On 12 October 2011, a five-year residence card was granted (a stamp 4 EUFAM permission) (“the Residence Card”).

- On 1 September 2015, a deed of separation formalised the separation of the Applicant from his spouse (the parties having separated in February 2015).

- On 11 August 2016, the Applicant applied for a new residence card on the basis of the marriage pursuant to the European Communities (Free Movement of Persons) Regulations 2015 (“the 2015 Regulations”) and Directive 2004/38/EC. No mention was made of the fact that the parties had separated (“the 2016 Application”).

- On 12 October 2016, the five-year Residence Card expired.

- On 14 April 2017, the 2016 Application was refused.

- On 28 April 2017, the Applicant submitted a review application in relation to the refusal of the 2016 Application together with some supporting documentation and also requested permission to reside the State while the decision on the review application was pending.

- On 12 July 2017, a temporary permission to reside in the State until 2 March 2018 was given to the Applicant (having initially been refused on 31 May 2017). This letter stated, “Please note that 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 application will be either approved or refused.”

- On 2 March 2018, the first temporary permission expired.

- On 20 March 2018, the Applicant requested an extension of the temporary permission to remain.

- On 10 April 2018, the Applicant was informed in writing that the Minister was proposing to uphold the decision to refuse the 2016 Application.

- On 1 May 2018, the Applicant made further submissions to the Minister regarding the proposed decision and requested an extension of the temporary permission to remain.

- On 4 May 2018, the Applicant was given a second temporary permission to remain in the State until 4 August 2018 while the review of the decision to refuse the 2016 Application was considered. That letter expressly states “This stamp 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. This will be determined in due course when your review will be either approved or refused.”

- On 26 July 2018 the Applicant was informed that the review which had been undertaken under regulation 25 had been refused on the basis of findings of fraud or abuse of rights under regulation 27(1), as the Minister had formed the view that the marriage was not a genuine subsisting marriage.

- On 4 August 2018, the second temporary permission to reside in the State expired.

- On 25 September 2018, the Applicant’s solicitors made an application on behalf of the Applicant for permanent residence, on the basis of EU treaty rights.

- On 9 October 2018 the Applicant was informed that such an application would not be accepted because the Applicant did not comply with the 2015 Regulations.

- On 22 October 2018, leave was granted to bring judicial review proceedings challenging the decision of 26 July 2018 and the alleged decision of October 2018.

- On 2 November 2018, a clarification was issued by the Minister to the effect that the original Residence Card “shall be deemed to be invalid from the outset” and was revoked under regulation 27.

- On 6 June 2019, the High Court (Humphreys J) gave judgment dismissing the proceedings and refusing the relief sought, finding that it was open to the Minister to find that the marriage was a marriage of convenience and the Applicant was accordingly not entitled to exercise EU treaty rights (F.A.Y. (Nigeria) v. Minister for Justice [2019] IEHC 373).

- On 17 February 2020, a deportation order was issued pursuant to section 3 of the Immigration Act 1999 (as amended) (“the Deportation Order”).

- On 21 August 2020, a letter was issued by the Minister notifying the Applicant of the deportation order and requiring the Applicantto leave the State by 18 September 2020.

- On 31 January 2022, the scheme for long-term undocumented people and their dependents to regularise their status (“the Scheme”) came into effect. The Scheme was available to persons who demonstrated residence in the State without a valid residence permission (undocumented) continuously for a minimum period of four years immediately prior to the opening date of the Scheme and to have continued to do so at the date of application.

Applicants therefore needed to show undocumented residence for the four-year period from

31 January 2018 to 31 January 2022, and up to the date of application (“the Relevant Period”).

- In February 2022, the Applicant applied to avail of the Scheme.

- On 18 April 2023, the application to the Scheme was refused.

- On 24 April 2023, the Applicant sought to review that refusal.

- On 31 October 2023, the Minister refused the application to participate in the Scheme.

- The Applicant issued judicial review proceedings seeking to challenge the decision of 31 October 2023, which were ultimately compromised with an agreement the Minister would withdraw that decision, reconsider and make a fresh decision.

- On 30 August 2024, another decision was made by the Minister and communicated to the Applicant to the effect that he was refused permission to remain in the State under the Scheme (“the Impugned Decision”).

- On 13 December 2024, the Applicant was given leave to seek judicial review of the Impugned Decision.

5. The most relevant time periods that emerge from the above chronology are that the Applicant was granted temporary rights of residence from 12 July 2017 to 2 March 2018 and from 4 May 2018 to 4 August 2018 (“the Temporary Permissions”). There is an overlap between each of these periods and the Relevant Period (which commenced on 31 January 2018).

6. The only other relevant right of residence was granted from 12 October 2011 to 12 October 2016 (“the Residence Card”).

ISSUES

7. The primary key issue in this case is a relatively net one: at any time during the Relevant Period, did the Applicant have a right to reside in the State, which was not revoked and invalidated ab initio?

8. It is pleaded in the Statement of Grounds that the Residence Card was void ab initio and that it was illogical that the Temporary Permissions are deemed valid. The Applicant pleads that, given that the Residence Card was revoked, and the Temporary Permissions were granted solely for the purpose of the review of that decision, they cannot be deemed to have been independently valid. It is pleaded that the Impugned Decision is invalid, arbitrary, discriminatory, unreasonable and disproportionate.

9. The Minister’s response on this point is that the Residence Card was revoked, whereas the Temporary Permissions were granted in the exercise of the Minister’s discretion, independently of the decision to revoke the Residence Card, and were not revoked. It is said that the Applicant was lawfully resident for the duration of those Permissions. In opposing the orders sought, the Minister also emphasises that the Applicant does not come within the purpose of the Scheme, which is designed for the benefit of long-term residents in the State who have been deprived of the ability to travel or work. It is said that the Applicant does not fit within this policy, as he has had the benefit of permissions to reside here and has worked and had the right to travel.

Particular reliance is placed by the Minister on the judgment of the High Court (Heslin J.) in M.A. v. Minister for Justice [2025] IEHC 135 (“M.A.”) which is said to be an important test case and to be directly relevant and applicable here.

10. The second issue in this case is the alternative EU law argument by the Applicant. It is contended that, if the Applicant enjoyed periods of permission pursuant to Directive 2004/38/EC, then he is a former beneficiary under the Directive such that he cannot be removed from the State under national law. It is said that he can only be removed from the State pursuant to Article 15 of Directive 2004/38/EC and that section 3 of the Immigration Act 1999 could not be availed of. Reliance is placed on the judgment of the European Court of Justice in Case C-

9411 8, Nalini Chenchooliah v. Minister for Justice and Equality, Judgment of the Court (Grand Chamber) of 10 September 2019 (“Chenchooliah”) (this is referred to in this judgment as “the Alternative EU Ground”).

11. The Minister opposes this ground on several grounds, including the preliminary objection that this is a collateral attack on the Deportation Order, which challenge could only be brought pursuant to the procedures set out in section 5 of the Illegal Immigrants (Trafficking) Act 2000, as amended, which includes a 28-day time limit.

12. Before assessing the specific documents which are central to this matter, it is necessary to understand the legal framework. The parties are agreed as to the most important judgments in this area. The relevant legislation and these judgments will next be assessed.

LEGISLATION

13. Regulation 7 of the 2015 Regulations provides for applications for residence cards by persons who have become family members of nationals of an EU member state. It provides in Regulation 7(6) that such an applicant “…may remain in the State pending a decision on the application.”

14. Regulation 27(1) of the 2015 Regulations provides,

“The Minister may revoke, refuse to make or refuse to grant, as the case may be, any of the following where he or she decides, in accordance with this Regulation, that the right, entitlement or status, as the case may be, concerned is being claimed on the basis of fraud or abuse of rights:

(a) a decision under Regulation 5(3) that a person be treated as a permitted family member;

(b) a residence card, a permanent residence certificate or permanent residence card;

(c) a right of residence under Regulation 9(1);

(d) a right of residence under Regulation 9(2);

(e) a right of residence under Regulation 9(3);

(f) a right of residence under Regulation 10(1);

(g) a right of residence under Regulation 10(2);

(h) a right of residence under Regulation 12(1).”

15. This is the provision that was relied upon for the decision to revoke the Residence Card.

RELEVANT JUDGMENTS

16. The first authority to consider is U.M. (A Minor) v Minister for Foreign Affairs and Trade [2022] IESC 25 (“UM”). In that case, the Minister for Foreign Affairs refused an application for a child’s passport on the basis that his derivative right of citizenship had been retroactively invalidated owing to the revocation of his father's refugee status. The Supreme Court (O'Donnell CJ. and Dunne J. delivering concurring judgments, and Charleton, O'Malley and Baker JJ agreeing with Dunne J.) found that a decision to revoke the refugee status of the applicant's father was prospective in effect and did not have the effect of nullifying the child’s derived rights to citizenship which were acquired prior to the revocation of the father’s refugee status. The legislative and factual context of that case are quite distinct from the present one.

In this case, the primary contention of the Applicant is that all rights of residence (including his temporary permissions) were retrospectively revoked and invalidated ab initio. This is in sharp contrast to the applicant’s case in U.M.

17. A.K.S v. Minister for Justice [2023] IEHC 1 (“A.K.S.”) is an authority on which the Applicant particularly relies. Like U.M., it includes some consideration of the impact of a revocation of residence rights on the acquired citizenship of a child. In A.K.S., there was a challenge to the lawfulness of the revocation – with retrospective effect - of a residence card issued under the 2015 Regulations. Like here, the revocation was based on a finding that the marriage relied upon was a marriage of convenience. As Phelan J. found in that case, the language of regulation 27(1) of the 2015 Regulations is discretionary in its terms: “the Minister may revoke, refuse to make or refuse to grant… a residence card” where he decides that the right “is being claimed on the basis of fraud or abuse of rights”. Phelan J. noted that regulation 27 does not mandate the revocation of a permission or provide expressly for retrospective nullification of permissions which have been granted on the basis of marriages of convenience. Phelan J. also acknowledged that the Supreme Court in U.M. disfavoured the retrospective invalidation of historic immigration status and derived rights. Accordingly, while she found that the 2015 Regulations conferred a specific discretion on the Minister to invalidate rights of residence “where this is a proportionate exercise of discretion” (at [118]), she also found that this “does not extend to a power to revoke which has the effect of nullifying acquired or vested citizenship rights” (at [124]). A key feature of A.K.S. was that the Minister had a misapprehension that the revocation of the right of residence was mandatory and therefore failed to exercise the discretion conferred by the 2015 Regulations in a proportionate manner and, in particular, failed to have due regard to the impact of any such revocation on the acquired citizenship rights of the applicant’s child. It is of material relevance to note that A.K.S – unlike this case – concerned a challenge to the decision to revoke the residence card. I am not concerned in this judgment with a challenge to the decision to revoke the Applicant’s Residence Card and the finding that there was a marriage of convenience has already been upheld by Humphreys J.

18. The next relevant judgment is M.A., which was a test case for several other cases in which the same or similar issues arose (despite the case itself having become moot by the time of its determination). The background there was that the Minister informed the applicant that his residence card (based on what had been found to be a marriage of convenience) was invalid and deemed never to have been valid. M.A. sought a review of that decision and was afforded temporary permission to reside in the State pending the outcome of the review. When M.A.

subsequently sought to avail of the Scheme, he was found to be ineligible as he did not fulfil the criteria of residence without permission throughout the Relevant Period (owing to the temporary permissions which had been granted).

19. Heslin J. held that, whereas the residence card granted on foot of the marriage of convenience was void ab initio, the right to reside in the State pursuant to the two temporary review permissions was not based on the marriage. He held that it was a matter of fact that neither review permission was ever revoked or declared invalid by the Minister: rather, both came to an end by expiry. He also distinguished between temporary permissions to remain pending an initial application for a residence card based on marriage (Regulation 7 confers a right to remain in that circumstance), and temporary permissions granted pending a review of a ministerial

decision to refuse or revoke a residence card. Regulation 25 governs the latter and provides for no right of residence pending the outcome of the review. In the latter case, as Heslin J. found, it is a matter within the discretion of the Minister and not a matter of right.

20. Heslin J. summarised his findings as follows:

“…it seems to me that the right to reside in the State pursuant to the two temporary review permissions was not grounded or based on the marriage of convenience.

Even if I am wrong in that view, it is a matter of fact that neither review permission was ever revoked or declared invalid by the Minister. Both came to an end by expiring. The gravamen of the applicant's case is that the finding of fraud, i.e. a marriage of convenience, “cannot conceivably allow any permission granted to the applicant to be valid”. Even if there had been an expressed revocation, by the Minister, of both of his temporary review permissions (and there was not) and even if this Court had come to the view that both temporary review permissions were invalid (and it has not) the applicant has not established that the intention or effect of any such revocation was to bring him into the category covered by the Scheme.

The guidance given by the Supreme Court in U.M. makes clear that the situation is far from as simple as the proposition that ‘fraud unravels all’. The legal effect and consequences of a finding of invalidity must be considered in context and will depend on the particular circumstances. From the point at which he received the first EUTR permission (5-year residence card) in 2013, the applicant possessed a series of permissions which were valid at the time. He relied on those, gaining a range of advantages not available to the category of persons to whom the Scheme is directed. The applicant was not, as a matter of fact ‘undocumented’ in the sense in which that term is explained in the Scheme policy paper. The applicant has not established that the rights which he, as a matter of fact, enjoyed by virtue of and during the currency of his EUTR permissions, must be ignored for the purpose of the Scheme, notwithstanding the fact that the applicant never faced the challenges experienced by those for whom the Scheme was introduced. For the reasons set out in this judgment, the applicant has failed to establish any entitlement to relief and his claim must be dismissed” (at [108]).

21. That decision was followed by O’Regan J. in M.S.B. v. Minister for Justice [2025] IEHC

566 (“M.S.B.”). The facts of M.S.B. bear a strong similarity to M.A. and to this case. By way of summary, the applicant married an EU citizen and applied for and obtained a residence card on that basis. The Minister subsequently determined that the marriage was one of convenience and advised the applicant that the residence card and the temporary permission which had been granted previously were invalid. A review of that decision was requested and temporary permissions were granted, pending the review decision. It was indicated in those temporary permissions that they were not an acknowledgement of any rights under EU law.

22. The Minister ultimately upheld the decision to invalidate the residence card and it was revoked. The applicant then applied for a right of residence under the Scheme. This was refused on the ground that the applicant did not meet the eligibility criteria of being undocumented during the Relevant Period, by reason of the temporary permissions he had been given. The applicant challenged this refusal, on the ground that the temporary permissions had been found to be invalid. This challenge was unsuccessful as the temporary permissions had not been revoked, a decision which was then the subject of the High Court judgment. The applicant sought to distinguish the facts of M.A. and also asserted that certain authorities were not opened in that case.

23. O’Regan J. refused the application for judicial review, finding that the decision to revoke was referable only to the residence card and not the temporary permissions and that the judgments in A.K.S. and U.M. did not support the applicant’s position. She concluded,

“…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” (at [23]).

24. O’Regan J. further concluded that the temporary permissions were not granted on the basis of the marriage and that there was no right of residence pending a review of a refusal or revocation of a residence card under the Regulations. It was rather a matter of ministerial discretion.

25. A final relevant aspect of the judgment in M.S.B. is the reliance placed on M.A. O’Regan

J. rejected the attempt to distinguish or disapply the judgment of Heslin J. in that case, noting there was no basis to regard that decision as incorrect. She concluded in this respect:

“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.”

26. These findings – and their adoption in M.S.B. - are clearly relevant and important here. The extent of that relevance will be assessed later in this judgment.

27. I will turn next to assess the documents exchanged in this case on which the parties place particular reliance.

RELEVANT DOCUMENTS

28. The key documents are the letters of 26 July 2018, 2 November 2018, 18 April 2023, 31 October 2023, and 30 August 2024. The relevant excerpts from these letters are set out below. I also summarise the parties’ positions on each letter and my findings on their correct interpretation.

29. In the letter of 26 July 2018, the Minister states:

“The evidence available to the Minister strongly indicates the marriage contracted on 28/1/2011 was entered into for the purpose of gaining a valid immigration permission to which you would not otherwise be entitled. Therefore, under Regulation 27(1) of the Regulations, the Minister is refusing your application for a residence card on the basis of fraud or abuse of rights. The Minister is satisfied that you should now cease to be entitled to any right of residence in accordance with Regulation 27(1) of the Regulations 2015.

… Your current permission to remain in the State will expire on 4th August 2018. This permission was granted on the basis of your pending EU Treaty Rights application or application review. This permission will not be renewed. The review of your EU Treaty Rights application is now closed.”

30. Counsel for the Applicant relies heavily on the above letter and asserts that it cannot be said that the Residence Card was void and the Temporary Permissions survived as valid, in light of that letter. The Minister disputes this position and emphasises the distinction between the residence card, which was granted under the 2015 Regulations, and the Temporary Permissions, which were granted in the exercise of the Minister’s discretion.

31. Having considered the submissions made by the parties and the extensive reliance placed by the Applicant on the letter of 26 July, I make the following findings:

32. First, the letter is not ambiguous as regards the status of the Temporary Permission: the decision to refuse the residence card was upheld, but the then-current Temporary Permission nonetheless remained valid and would expire on its designated expiry date. On the basis of the documentation and submissions presented to me, I regard this as the only correct characterisation of that letter: despite the refusal of the residence card, the then-existing Temporary Permission would expire on the date originally fixed for its expiry, 4 August 2018.

33. Second, this letter states that the Applicant “should now cease to be entitled to any right of residence in accordance with Regulation 27(1) of the Regulations 2015”. This phrase is difficult to understand, given that the original Residence Card had expired on 12 October 2016 and the letter (as already noted) states expressly that the Temporary Permission would not expire until 4 August 2018. It is not clear what “right of residence” is referred to. However, I do not believe that there is any reasonable or tenable basis to interpret that letter as confirming that the Applicant had rights of residence under EU law (as is argued in support of the Alternative EU Ground). Despite the ambiguity of this particular phrase, the letter clearly confirmed the finding that there was a fraudulent marriage of convenience and I do not believe that the letter can be interpreted as recognising or conferring some right of residence under the 2015 Regulations.

34. Third, the stated purpose of the 26 July 2018 letter was to communicate the Minister’s refusal to review the earlier decision of 9 April 2017 on the application for a residence card. That

decision – to that effect – was the subject of the judicial review proceedings which were determined by Humphreys J. against the Applicant ([2019] IEHC 373). The letter of 26 July 2018 does not address, expressly or with any clarity, the status of the expired original Residence Card. The case pleaded by the Minister is that the original Residence Card was revoked under regulation 27 by the decision of 26 July 2018 and “confirmed” in the letter of 2 November 2018.

This acknowledges that there was a need to confirm or clarify the impact of the 26 July 2018 letter on the original Residence Card. That letter therefore needs to be read together with and in light of the 2 November 2018 letter, as will be seen below.

35. On 2 November 2018, the Minister wrote to the Applicant to the following effect:

“I am directed by the Minister for Justice and Equality to refer to our decision dated 26/07/2018 to refuse your application for a residence card in the State in accordance with the provisions of Regulation 27(1) of the European Communities (Free Movement of Persons) Regulations 2015 (the "Regulations").

Please be advised that Regulation 27(1) of the Regulations provides that the Minister may revoke, refuse to make or refuse to grant, as the case may be, a residence card, where he decides that right is being claimed on the basis of fraud or abuse of rights. Please note that 'abuse of rights' includes a marriage of convenience.

In that regard, it is noted that you were advised that the Minister was not satisfied that you and the EU citizen are in a bona fide subsisting marriage and was also of the view that the marriage was contracted for the purpose of obtaining a valid permission to which you would not otherwise be entitled.

As such, the Minister deemed your marriage to be one of convenience in accordance with the provisions of Regulation 28 of the Regulations. Accordingly, the permission that was granted to you on 12/I0/2011, for a period of five years, in accordance with the provisions of the Regulations, is deemed to be invalid from the outset.

Therefore, the Minster has revoked your residence card in accordance with the provisions of Regulation 27(1) of the Regulations as proposed.

I trust this clarifies the matter.”

36. The parties differ as to their interpretation of this letter and its import. The Applicant contends that the letter seeks to contradict the 26 July 2018 letter but that the latter remains the material

decision and, if there is a clash, the relevant decision is that of 26 July 2018. It is contended that the right to reside in the State therefore ceased only on 26 July 2018 and the letter of 2 November 2018 should be disregarded. It is also contended that the Minister cannot vary decisions taken in the manner suggested in this case. These submissions are made in support of the Alternative EU Ground.

37. The Minister’s position is that the letter of 2 November 2018 confirms the decision that the original Residence Card was invalid from the outset, but says nothing about the Temporary Permissions and gives rise to no confusion.

38. Before proceeding further, I must note that I accept the Minister’s position in this respect. The letter of 2 November 2018 confirms that the original Residence Card is deemed to have been “invalid from the outset” but has no bearing on the validity of the Temporary Permission, which was confirmed in the 26 July 2018 letter to be separate from the application for a residence card.

39. Insofar as the Applicant disputes that the 2 November 2018 was a clarification of the 26 July letter, I do not see a good basis for this argument. I have already noted the ambiguous and unclear statement in the letter of 26 July 2018 that “the Minister is satisfied that you should now cease to be entitled to any right of residence in accordance with regulation 27(1)”. There was no existing right of residence under the 2015 Regulations which could have ceased at that date and the Temporary Permission continued in existence until 4 August 2018. The letter of

26 July does not expressly address the status of the original Residence Card. By contrast, the letter of 2 November 2018 specifically communicates and confirms the decision of the Minster that the original Residence Card granted in 2011 was revoked and deemed to be invalid from the out-set.

40. The Minister contends that the 2 November 2018 letter issued during the judicial review proceedings and those proceedings could have been amended to include a challenge to that letter. I do not believe this is a good point, given that the case being made by the Applicant is that the letter of 2 November 2018 should be disregarded. The Applicant does not seek to challenge that letter, but rather to reject its relevance (at least for the purpose of his Alternative EU Ground). However, if and insofar the Applicant is seeking to indirectly challenge the

decision to revoke the original Residence Card from the outset, which is the decision communicated on 2 November 2018, this is not a relief sought by these proceedings, nor could it be.

41. The letter of 18 April 2023 then includes the following text:

“You do not satisfy the required period of undocumented residence in the State.

On examination of your immigration history, it was noted that you resided in the State under EU Treaty Rights on a Stamp 4 basis until 04 August 2018, and was not revoked prior to the Scheme's opening date of 31 January 2022. You were therefore not undocumented for a continuous four-year period immediately prior to the Scheme's opening date of 31 January 2022.”

42. This letter is again confusing, as it refers to residing in the State “under EU treaty rights… until

04 August 2018”, whereas the only permission which the Minister now says was granted pursuant to EU Treaty rights was the Residence Card, which expired on 12 October 2016. The Minister’s position in these proceedings is that the Temporary Permission which was granted as a matter of discretion expired on 4 August 2018 and was not revoked. The reference to residing in the State “under EU Treaty Rights on a Stamp 4 basis until 4 August 2018” is unclear. It may be recalled that the letter of 4 May 2018 granting that permission included the following language: “Please note receipt of a Stamp 4 for this period is not an acknowledgement of having an entitlement to residence under EU Treaty Rights”. The reference in the letter of 18 April 2023 to residing “under EU Treaty Rights” must be an error.

However, this does not alter the specific terms on which Temporary Permissions were granted or their legal character, as addressed authoritatively in M.A. and M.B.S. It also does not change the fact that the letter of 26 July 2018 confirmed that the Temporary Permission survived independently of the refusal of the second residence card.

43. By letter dated 31 October 2023, the Minister states,

“Having considered the entirety of the case, the refusal decision of 18 April 2023 is upheld for the following reason (s):

You do not satisfy the required period of continuous undocumented residence for the Scheme. Clause 4.10 of the Policy Paper states that principal applicants must have resided in the State without a valid residence permission continuously for a minimum of four years immediately prior to the opening date for this Scheme, i.e., 31 January 2022, and to have continued to do so at the date of applying under the Scheme.

As you applied for and received Stamp 4 permission based on marriage to an EU Citizen you do not meet the criteria as undocumented.”

44. This letter was withdrawn as part of the settlement of the judicial review proceedings and is not considered further.

45. Following the settlement of the judicial review proceedings, the Impugned Decision was issued, stating:

“… Once the 4 August 2018 had passed, your permission lapsed, rather than ever being expressly revoked. This was due to a failure on your part to seek to renew permission to remain in the State, and therefore you were legally in permission in the State until the 4 August 2018.

…

As you held a valid permission to be in the State from 12 July 2017 until 2 March 2018 and from 4 May 2018 until 4 August 2018, you do not satisfy the requirement that applicants under the Scheme be in the State undocumented for four years immediately prior to the opening date of the Scheme (being the 31 January 2022). This means that you are not eligible under the Regularisation of Long Term Undocumented Migrants Scheme. Therefore, the Minister is upholding the refusal of your initial application under the Scheme.”

46. The letter continued,

“In your circumstances, given that the letter revoking the original EUTR permission dated 12 October 2011 - 2016 did not revoke the temporary permissions you held, these remain valid and you were therefore documented during the time periods you held these permissions. You were not without permission for the entirety of the required length of time, during the dated 31 January 2018 - 31 January 2022, and therefore do not qualify under the Scheme.

APPEAL DECISION

I have reviewed the first instance decision, and while the language in that decision was not sufficiently clear regarding the duration of the previous EUTR permissions, I have rectified this above and uphold the finding of the first instance decision maker. While your initial EUTR permission was revoked ab initio, the temporary permissions issued to you while you awaited a review decision were not revoked. The final temporary permission you held was not revoked but allowed to lapse.

You were documented from 31 January 2018 until 2 March 2018 and from 4 May 2018 until 4 August 2018. You are therefore ineligible for the Scheme.

Your appeal is therefore refused."

47. The Applicant contends that this letter is not consistent with earlier correspondence, particularly the letter of 26 July 2018. The overall submission made by the Applicant in relation to the correspondence is that it is inconsistent, contradictory, does not make sense and cannot withstand scrutiny; that the letter of 26 July 2018 is the material decision; and that it confirms that there was a right to reside under the Regulations until that date.

48. I have already rejected the interpretation of the letters of 26 July 2018 and 2 November 2018 advanced by the Applicant (while noting the ambiguity and lack of clarity in the letter of 26 July 2018). While there is some confusion and lack of clarity in some of the correspondence, I do not believe it can be read as revoking the Temporary Permissions or as confirming the validity of any EU treaty rights to reside in the State. On the contrary, the account of the correspondence and decisions contained in the letter of 31 October 2024 is consistent and reconcilable with the content of the relevant letters, most particularly the letters of 26 July 2018 and 2 November 2018.

49. The effect of this assessment is that the application for a second residence card was rejected, a

decision which was upheld by the letter of 26 July 2018; the temporary residence permissions which were granted while that review was underway expired and were not revoked; and the original Residence Card was revoked from the outset, as confirmed on 2 November 2018. As I have noted, there is a lack of clarity and a degree of apparent confusion in some of the

correspondence, but these fundamental points are clear when the letters of 26 July 2018 and 2 November 2018 are reviewed.

ANALYSIS OF THE ISSUES

50. The next question is the legal consequences of the factual findings I have made as regards the correspondence and documentation. I will deal with this in respect of the two primary categories of issues that arise, namely (a) Access to the Scheme and (b) the Alternative EU Ground.

(a) Access to the Scheme

51. The primary case of the Applicant, as pleaded, is that the Temporary Permissions were revoked; that M.A. should not be applied; that he meets the criteria of the Scheme; and that the Minister erred in fact and in law in making the Impugned Decision. While counsel for the Applicant acknowledged that a strict application of M.A. would lead to the rejection of this application based on the Scheme, he argued that M.A. should not be applied, on the basis that the facts of this case are unique and distinctive. Particular reliance is placed on alleged inconsistencies and issues with the correspondence and on the fact that there were previous judicial review proceedings by the Applicant challenging the refusal to accept his application to avail of the Scheme. There was no argument that M.A. was incorrectly decided. It was contended that the Applicant must either quality under the Scheme or under the rules applicable to the free movement of EU residents.

52. The position of the Minister is that the correspondence is clear and is consistent with the situation in M.A. and M.B.S. Counsel for the Minister contends that the decision to revoke the Residence Card and the issue and treatment of the temporary permissions here are to be equated with those cases. It is said that the Minister has a discretion to revoke a residence card under Regulation 27(1) when a marriage of convenience is found to have occurred. As regards temporary permissions, it was emphasised by counsel for the Minister that they are discretionary and are not granted under the Regulations or as of right. They are a species of temporary right and the rights granted to the applicant on a temporary, time-limited basis expired rather than being revoked. This is contrasted with permissions to reside pending a

decision on an application for a residence card, which are granted under regulation 6(1) (a point emphasised in M.A.). The Minister’s position is that, as a matter of judicial comity and, by the application of the principles set out in Hughes v Worldport Communications Inc.

[2005] IEHC 189 (“Worldport”), M.A. is binding and applicable here.

Assessment

53. I have already assessed the correspondence and found that the correspondence issued by the Minister did not indicate any intention to revoke or invalidate the Temporary Permissions from the outset. Those permissions were left extant until their expiry. This is consistent with M.A.

and M.B.S. I am satisfied that the principles of judicial comity expounded in Worldport are applicable here and that “as a matter of judicial comity” I should “follow the decision of another judge of the same court unless there are substantial reasons for believing that the initial judgment was wrong” (per Clarke J. in Worldport). In this case, there is no relevant basis to distinguish or disapply M.A. and no basis to form a view that it was wrongly decided. M.A.

does therefore fall to be applied here. The fact that there were previous judicial review proceedings in this matter, and that some unclear language was included in the correspondence (and subsequently clarified) does not alter the impact or interpretation of the relevant correspondence or the relevance of the judgments of the High Court in M.A. and indeed M.B.S.

54. It may be noted that the Applicant here seeks to rely on the fact that U.M and A.K.S. pre-dated the decision to revoke the Residence Card as support for his argument that the Temporary Permissions were invalidated. However, I have already found that there is no decision to revoke the Temporary Permissions. In addition, far from supporting an inference or presumption of revocation, U.M. and A.K.S. underline the need for the proportionate exercise of a discretion to revoke a right of residence ab initio. Those cases make it plain that there can be no room for an implication or inference that rights to reside were revoked ab initio. The suggestion that the Minister “must” have revoked the temporary permissions if he was revoking the Residence Card (Amended Statement of Grounds, at [5]), is without a basis in fact and finds no support in U.M. or A.K.S.

55. I am satisfied that the correct interpretation of the facts in light of the applicable law (most particularly the judgment in M.A.) is that the Temporary Permissions were granted as a matter of discretion, rather than statutory right, they were not based on the validity of the marriage;

and they were not revoked. The Minister was entitled to form the view that the grant of those temporary rights of residence excludes the Applicant from the ambit of the Scheme and did not err in so deciding.

(b) Alternative EU Ground

56. The alternative case advanced by the Applicant is that, if he fails in challenging the Impugned

Decision, the effect of the decision of 26 July 2018 is that his rights ceased from that date. It is asserted that the Applicant therefore enjoyed periods of permission to reside in the State in the exercise of rights conferred by EU law, that he is a former beneficiary under the Directive such that he cannot be removed from the State under national law. It is said that he can only be removed from the State pursuant to Article 15 of Directive 2004/38/EC and that section 3 of the Immigration Act 1999 could not be availed of.

57. It is also submitted on behalf of the Applicant, relying on A.K.S., that fraud does not mean that a right of residence is automatically revoked, but rather that procedural safeguards must be in place for such a decision to be taken. It was argued that there is no binary situation when fraud is detected. It is also argued (as addressed above) that the material decision of the Minister is the decision contained in the letter of 26 July 2018 and that this was not and could not be altered by the 2 November 2018 letter. He asserts that the position of the Minister is illogical and contradictory as it is based on the temporary permissions being valid, but the initial 5-year residence never having been valid.

58. These points are made in support of the argument that the Applicant was lawfully present in the State exercising rights under EU law and that Chenchooliah is therefore applicable.

59. The arguments made by the Respondent in reply are that:

(a) This is an impermissible collateral attack on the deportation order, which was not challenged by the Applicant under section 5 of the Illegal Immigrants (Trafficking)

Act2000 and cannot now be challenged. Reliance is placed for this proposition on XX v.

Minister for Justice [2019] IESC 59.

(b) The letter of 2 November 2018 communicated and confirmed the decision to revoke the original Residence Card issued in 2011 as an abuse of rights.

(c) It is clear from M.A. and M.B.S. that temporary rights of residence given pending a review of a decision to revoke or refuse a residence card are not rights which are conferred as a matter of EU law and are not governed by or conferred under the 2015 Regulations or Directive 2004/98.

(d) Chenchoolia does not apply to situations of fraud, such as marriages of convenience.

Reliance is placed on Yaqub v. Minister for Justice [2024] IECA 166 (“Yaqub”).

Assessment

60. The first issue to consider is the Minister’s preliminary objection that the Alternative EU Ground is a collateral attack on the deportation order. The judgment of the Supreme Court (Charleton J., with O'Donnell, MacMenamin, Dunne, and O'Malley JJ. agreeing) in XX v.

Minister for Justice [2020] 3 IR 532 emphasises the need to challenge decisions on questions of asylum and immigration within the applicable time limits and the impermissibility of seeking to collaterally challenge such decisions after that point in time. Charleton J. noted that:

“Coherence is brought to the system, providing for a situation where both the State parties operating international protection and those applying for leave on asylum or subsidiary protection grounds, by s. 5 of the Illegal Immigrants (Trafficking) Act 2000 (“the 2000 Act”). The object of this section is that a review of points that are claimed to arise should be taken through the mechanism of judicial review in the High Court and within fixed time limits. Hence, the section generally provides that a “person shall not question the validity” of particular decisions “otherwise than by way of an application for judicial review under Order 84 of Rules of the Superior Courts”. That carries a three-month time limit” (at [25]).

61. The Supreme Court proceeded to reject the attempt to collaterally attack an earlier decision to refuse to grant an application for asylum.

62. In this case, the Deportation Order was communicated to the Applicant on 21 August 2020 (almost a year after the decision of the CJEU in Chenchooliah). The time period for challenging the Deportation Order has long passed. The fact no attempt was previously made to challenge the Deportation Order by the applicable statutory process is an obstacle to any attempt to challenge it now. However, I will nonetheless proceed to deal with the merits of the Alternative EU Ground.

63. I have already found as a matter of fact that the letter of 2 November 2018 clarified and communicated the decision to revoke the original Residence Card. This Residence Card was, according to the Minister, invalidated from the outset. The effect of that decision is that the Applicant was not lawfully present in the State pursuant to Directive 2004/38/EC during that five-year period. There has been no challenge to that revocation decision. The reliance which the Applicant places on cases such as S.M.A. v. Minister for Justice [2023] IEHC 642 is misplaced, given that S.M.A. arose from a challenge to the Minister’s finding that the applicant’s marriage was a marriage of convenience. The Applicant here has already sought – unsuccessfully – to challenge the decision of 26 July 2018. There is and can be no challenge to that decision before me.

64. Insofar as the Applicant seeks to rely on the Temporary Permissions, I have already found that these temporary rights which were given to the Applicant pending the review of the refusal of the second residence card were rights conferred in the exercise of the discretion of the Minister and not rights conferred pursuant to the 2015 Regulations or Directive 2004/38/EC. This flows from the application of M.A. and M.B.S. The Applicant was not at any time lawfully resident in the State on the basis of rights of residence conferred by EU law.

65. Turning then to Chenchooliah, the facts of that case, in broad summary, are that a Mauritian national who was resident in Ireland married an EU (Portuguese) citizen who was also resident in the State. Her husband was subsequently imprisoned in Portugal. She applied for discretionary leave to remain based on her personal circumstances, but the Minister decided to proceed with a deportation process under Irish law (section 3 of the Immigration Act 1999).

She was given leave to apply for judicial review of that decision, which resulted in a preliminary reference to the CJEU.

66. The Court noted that Ms Chenchooliah’s husband was an EU national who exercised his rights of free movement and that she lived with him in Ireland by virtue of her derived right of residence under Article 6(2) of Directive 2004/28. Following his departure, she was no no longer a beneficiary and no longer fulfilled the requirements of an accompanying EU citizen imposed by Article 3(1) of that Directive. She therefore no longer had a right of residence in the State under the Directive. The Court went on to consider the question of whether domestic law or EU governs the removal from the State of an individual who has lost the status of a beneficiary under the Directive. The Court concluded that the removal of a person who enjoyed, but lost, a right of residence in the State under the Directive, could only be effected under and in accordance with the requirements of Article 15 of the Directive. This decision was predicated on the person in question having previously held rights of residence in the State pursuant to Directive 2004/28.

67. As already observed, the EU law right of residence in the State that had been granted to the Applicant in 2011 was revoked and invalidated from the outset. The judgment of the Court of Appeal in Yaqub indicates that Chenchooliah is not applicable when the right of residence was found to have been obtained on the basis of fraud. As counsel for the Applicant quite accurately pointed out, that case did concern a very different type of fraud (which included impersonation). However, the overall finding of the High Court and the Court of Appeal - that rights of residence granted under the Regulations and Directive 2004/38 may be revoked on the basis of fraud, and that Chenchooliah was not then applicable to the removal of the person implicated in the fraud - is equally applicable here.

68. It is also relevant that Humphreys J. in the course of his decision in F.A.Y. (Nigeria) v. Minister for Justice [2019] IEHC 373 observed that,

“The rights under the free movement directive cannot be relied on in the case of abuse of rights (see Communication from the Commission to the European Parliament and the Council on guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States COM/2009/0313 final; and Commission Staff Working Document, Handbook on addressing the issue of alleged marriages of convenience between EU citizens and non-EU nationals in the context of EU law on free movement of EU citizens, accompanying the Communication to the European Parliament and to the Council, Helping national authorities fight abuses of the right to free movement: Handbook on addressing the issue of alleged marriages of convenience between EU citizens and non-EU nationals in the context of EU law on free movement of EU citizens, SWD/2014/0284 final)” (at [25]).

69. The Alternative EU Ground is rejected on several standalone grounds: it is an impermissible collateral attack on the Deportation Order; the only EU treaty-based rights to reside in the State which had been conferred on the Applicant were revoked ab initio; the Temporary Permissions were discretionary and not granted as an entitlement under EU law; and in any event Chenchooliah is not an authority that may be relied upon by the Applicant to challenge the basis for the Deportation Order, given the finding that he has engaged in an abuse of rights.

CONCLUSIONS

70. Each of the grounds relied upon by the Applicant in these proceedings is rejected. The Applicant has failed to demonstrate a basis for any of the relief sought by the Amended Statement of Grounds and the claim is dismissed.

71. Given the findings made, I am of the provisional view that the correct costs order is an order awarding the costs of the proceedings to the Minister. However, if either side should wish to contend for a different order, written submissions of no more than 1,500 words in length should be delivered by 13 March 2026. I will then list the matter before me at 10.30am on 18 March 2026 for the purpose of determining the allocation of costs and making final orders.