RECENT COURT OF APPEAL JUDGEMENT – A QUESTION REFERED TO THE COURT OF JUSTICE OF THE EUROPEAN UNION
The Court of Appeal has decided to refer a question to the CJEU in the case of R.S v Minister for Justice [2024] IECA 151, delivered on 21st June 2024.
The question relates to whether the Minister can make a decision/finding pursuant to the 2015 Regulations in relation to marriage of convenience/ fraud after the individual has become an Irish citizen through naturalisation.
The facts of this case surrounded an applicant who obtained an EU Fam residence card based on his marriage to an EU national in 2010 and he later naturalised as an Irish citizen. The applicant later separated and divorced from his EU National spouse.
In 2019, a third-party non-EEA national made an application for a residence permission on the basis that she was the mother an Irish citizen child, to whom the applicant was the father.
This resulted in the Residence Division contacting the EUTR Investigation unit who in turn opened an investigation into the applicant’s marriage to his ex-wife in 2010.
In December 2019 the Minister sent a letter to the applicant proposing to “revoke” his residence card, even in circumstances where at that time he was an Irish citizen.
In February 2020 the Minister revoked the residence card previously held by the applicant on the basis that he had submitted misleading documents and also on the basis that his marriage was one of convenience.
The Applicant reviewed this decision and in September 2020 the decision was upheld on review. A further review was sought by the applicant, and this was refused.
Correspondence between the applicant’s solicitor and the Respondent ultimately led to the above decisions being withdrawn and replaced with a new decision of February 2022. As the Court noted:
The wording of new decision of 1st February 2022 was different and, significantly, did not purport to “revoke” anything
In the decision of February 2022, the Minister held that the applicant had submitted false and misleading documents and that his marriage was one of convenience. The decision stated in material part:
This marriage was never genuine, and any entitlement or status conferred under the Directive from your marriage to the Union citizen concerned are deemed withdrawn from the outset.”
The High Court found the decision of the Minister to be lawful in that it did not proport to revoke or cancel anything, the fact that the applicant had acquired Irish citizenship did not make him immune to Ministerial enquiries into a grant of permission to him in the past.
The Court of Appeal held there are two key questions in this case:
- Does the Directive apply to an Irish citizen after he has ceased to be a beneficiary of it by reason of acquiring citizenship?
- Does the Minister have a “free-standing” power under the Regulations to make certain factual determinations at a time and in a context where there is no possibility of linking the determination to any decision to “revoke, refuse to make or refuse to grant” any right, entitlement or status in accordance with the Regulations?
The Court went on to consider the relevant Case law including Lounes v Secretary of State for the Home Department – In which it was held that once the applicant obtained British citizenship, as she was living in the UK, she was no longer a beneficiary of the Directive as she was no longer outside her member state.
The Court also compared the arguments in the present case to the judgment of Chenchooliah v Minister for Justice and Equality (Case C-488/21), 10th September 2019, where the Directive was still held to apply to the applicant even though it was clear she was no longer a beneficiary of same.
The Minister contends that the Regulations should be read as entitling the Minister to make a determination about a past state of affairs and also having regard to the context to the Regulations, implementing a Directive in which the prevention and detection of fraud and abuse of EU residence rights is an important component
The Court ultimately determined that a question should be referred to the CJEU:
Whether Directive 2004/38/EC applies to a person who previously obtained the benefit of derived residence in a Member State by virtue of being a spouse of an EU national exercising Treaty rights but who has more recently become a citizen in the host State and is no longer the beneficiary of any benefit under the Directive, solely for the purpose of investigating and (if appropriate) making a determination or reaching a conclusion that he engaged in a fraud or abuse of rights and/or a marriage of convenience in the past in order to obtain a benefit under the Directive?
The full judgements in this case can be accessed below.
