Ms Justice Bolger of the High Court has recently delivered a judgement in the case of K v Minister for Justice [2022] IEHC 582.
The case concerned a review of the decision to revoke an EU Residence Card which had been previously granted to the spouse of a Latvian citizen. The submissions put forward by the applicant were rejected by the Minister, who found firstly that the applicant’s marriage to an EU citizen was one of convenience, and secondly that the applicant had submitted false and misleading documentation in support of his application for a residence card.
The applicant initiated Judicial Review proceedings in the High Court to challenge the Minister’s decision, seeking an order of certiorari to quash the decision. Ms Justice Bolger found for the applicant and granted the order quashing the decision.
The Court found that the review decision contained a number of factual errors. The Minister had noted that throughout the review process, the applicant had never asserted that his marriage to the EU citizen spouse was not one of convenience, nor had he asserted that the documentation and information submitted was not false and misleading. The Minister acknowledged this to be an error but did not provide an affidavit confirming or explaining this error. The review decision also stated that the decision-maker had considered all of the documentation and information put forward by the applicant. The Court questioned the veracity of this statement in light of the error.
The review also incorrectly identified the date of the decision, and incorrectly identified the date of the applicant’s application for a residence card, at certain points of the decision. The Court found that the culmination of careless errors called into question the extent and quality of the review.
The Court then assessed the Minister’s claim that the applicant had failed to engage with the process. The Court found that the applicant did in fact engage with the review process. The applicant made submissions and provided documentation to support the assertion that his spouse had resided and exercised her rights in the State. The applicant had also furnished submissions in which he expressly refuted the finding of the deciding officer that the marriage was one of convenience.
The Court found that the applicant’s submission did not address the detailed immigration history of his spouse or the detailed relationship history which had been requested by the Minister. The applicant also did not seek to address the nature of the marriage ceremony, the extent to which the parties had been sharing income and outgoings, the nature of their relationship prior to the marriage, and whether they spoke a language understood by both of them. The Court found that the deciding officer was entitled to give weight to these omissions, but could not disregard different, but still relevant matters which the applicant had included in his submissions.
The Court further found that the decision maker did not afford the applicant fair procedures. The Court found that the decision maker failed to have any proper regard to the applicant’s submissions and failed to give a sufficiently detailed statement of reasons for their decision that the documentation and information submitted by the applicant in his application for a residence card was false and misleading. The decision maker did not address the applicant’s submission that his spouse was working and residing in the State during 2014 and 2015. The decision maker also did not give any commentary on the documentation that the applicant had submitted, including Revenue documents. There was no reference in the decision to the specific documentation furnished by the applicant at all.
The full judgement can be found here:
Mr Justice Cian Ferriter of the High Court has also recently delivered judgement in the case of S.K. and J.K. v Minister for Justice [2022] IEHC 591.
This case concerned an application for an EU residence card by a spouse of a Latvian citizen. This application was refused by the Minister on the basis of the finding that the applicant had contracted a marriage of convenience.
The couple initiated Judicial Review proceedings in the High Court to challenge this decision, seeking an order of certiorari to quash the decision to refuse the application. The couple were unsuccessful in their case and Mr Justice Ferriter refused the relief sought.
The applicants’ argued that the decision was arrived at in breach of fair procedures and due process. The applicants highlighted that the first applicant, the Indian spouse of the EU citizen, was never interviewed by the Garda National Immigration Bureau (GNIB) regarding the marriage. The applicants also argued that the burden of proof in the decision-making process was misapplied, and that the Minister had not engaged sufficiently with the evidence and submissions put forward by the applicants to refute that their marriage was one of convenience.
The Court rejected the argument that the Minister erred in placing the onus on the applicants to prove the validity of the marriage. The Court found that the Minister conducted her own investigations into the applicants’ marriage to ascertain whether the marriage was genuine. The Minister had received a note of the GNIB interview with the second applicant, the Latvian citizen spouse, and had put forward concerns that the marriage was one of convenience. The Minister considered submissions from the first applicant in this regard before delivering the decision that the marriage was one of convenience. The Court found that setting out a concern and inviting applicants to make submissions on that view does not constitute a shifting of the burden of proof.
The Court also rejected the argument that there was a failure to properly engage with the evidence and submissions put forward to the Minister. The Court found that the decision relied on relevant evidence, including notes from the GNIB interview with the second applicant and the submissions by the first applicant as to why the contents of the interview note should not be relied on by the Minister. The Court found that the decision-maker was entitled to take a view based on the evidence presented to them and highlighted that it is not the role of the Court to interfere with the decision-maker’s assessment of the merits of an application.
Finally, the Court considered the argument that there was a breach of the right to fair procedures in making a decision without interviewing the first named applicant. The Court concluded that, on the facts, the first applicant was not entitled, as a matter of fair procedures, to an oral interview or other oral process in order for the decision to be lawfully arrived at. The Court stated that the first applicant was able to make her case fully through written submissions to the Minister, and the case she made was fairly considered and assessed.
Furthermore, there was no material conflict as to the facts between the spouses which might have necessitated an oral interview. On the facts, the second applicant said at interview that the marriage was a sham and was for the sole purpose of obtaining a visa for the first applicant. The first applicant was on full notice of the fact that the Minister was concerned that the marriage was one of convenience. The first applicant did not seek to argue that the second applicant’s account should be disregarded as false and therefore there was no material conflict of evidence as to fact between the spouses which needed an oral process to resolve.
The full judgement can be found here:
This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.
