About this case:

• Citation:
  [2023] IECA 267
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Aileen Donnelly

Delivering judgment for the Court of Appeal, Ms Justice Aileen Donnelly determined that where no conflicts of evidence were found the information before the Minister, and where the demeanour of the appellant did not need to be assessed, there was “no legal right to an oral hearing regardless of factual circumstances”.

Background

The appellant was a Bangladeshi national who came to Ireland in 2007 on a student visa, which was renewed until the relevant visa scheme was amended. His student visa was due to expire on 5 May 2014, and thereafter could not be renewed.

The appellant claimed that he met a Romanian national at a party in Dublin in 2013, and that they married on 15 April 2014. The appellant subsequently applied for and was granted a residence card by virtue of his status as a spouse of an EU national pursuant to the provisions of Directive 2004/38/EC.

The appellant’s residence card was valid for five years until 23 October 2019. The letter confirming the grant of his residence card advised that the appellant was obliged to inform the Minister of any change in his circumstances.

In February 2019, the appellant was stopped at Dublin Airport by an immigration control officer, and following an interview, he was asked to provide contact information for his spouse.

The appellant’s spouse confirmed by telephone that she had been divorced from the appellant for three years and was unaware that he still lived in Ireland, having not spoken to him since the divorce. The appellant was notified that this information would be forwarded to the EU Treaty Rights Investigation Unit.

The appellant’s solicitor wrote to the Minister seeking to vary the basis for his permission to remain in the State. In December 2019, the Minister outlined various concerns in respect of the purported relationship between the appellant and his ex-wife.

The letter concluded that the marriage may have been one of convenience, and if confirmed, the Minister would disregard the marriage for the purpose of the European Communities (Free Movement of Persons) Regulations 2015, S.I. 548/2015. The appellant was given 21 days to respond and to furnish any evidence.

Despite the appellant’s denial that his marriage was one of convenience, he furnished no documentation supporting this position, and on 24 January 2020, the appellant was informed that a finding had been made in respect of his marriage and that his residence card would be revoked based on Regulations 27(1) and 28(1) of the 2015 Regulations. The letter continued that the information submitted in 2014 in respect of his ex-wife’s residence and employment in the State was false and/or misleading.

The appellant sought a review of the finding on February 2020, claiming that the basis upon which the Minister proposed to make such a finding ought to have been put to him and that an opportunity ought to have been provided for himself and his ex-wife to respond. The appellant did not request an oral hearing as part of the decision-making or review processes.

The Minister upheld the finding in respect of the marriage, citing the accelerated nature of the relationship, the lack of shared assets, and the precarious immigration status of the appellant. The Minister set aside her finding that the information submitted in respect of the relationship was false or misleading.

The appellant sought to judicially review the Minister’s decision.

The High Court

The appellant’s core legal argument before the High Court was that an oral hearing was required as the adverse finding of credibility against him was central to the Minister’s decision, relying primarily upon ZK v Minister for Justice & Ors [2022] IEHC 278.

The High Court referenced SK & JK v Minister for Justice [2022] IEHC 591, in which Mr Justice Cian Ferriter observed that ZK did not state that there was an entitlement as of right to an oral interview or other oral process under the 2004 Directive or the 2015 Regulations.

Distinguishing his case from ZK, the trial judge found that minimal documents were tendered in support of the genuineness of the appellant’s marriage, that an oral interview had been conducted with the appellant at Dublin Airport along with two telephone conversations with his ex-wife, and that the appellant was on notice of the Minister’s concerns and there was minimal engagement at best.

Concluding that no matters were identified which could not be dealt with in written submissions, the court was satisfied that the process adopted by the Minister was lawful and no further oral hearing was required.

The Court of Appeal

On appeal, Ms Justice Donnelly considered that as in ZK, the first issue was whether the appellant’s failure to request an oral hearing was determinative. Finding that it would be “imprudent” to make such a finding, the court noted that as per Galvin v Chief Appeals Officer [1997] 3 IR 240, a consideration of whether fair procedures required an oral hearing was necessary.

Observing that only at the judicial review stage did the appellant raise this issue, Ms Justice Donnelly remarked that the failure to request an oral hearing carried “significant weight” and that the appellant was “not entitled to sleep on his rights”.

Commenting on the absence of evidence tendered to the Minister in support of the appellant’s position, the court found that whilst the burden remained on the Minister to establish an abuse of rights, she “had placed her cards on the table and told the appellant of her suspicions. He chose not to interact save in a most legal and technical fashion. Not engaging with the process by failing to present evidence to demonstrate the genuineness of the marriage… is a high risk strategy.”

Rejecting the appellant’s contention that neither he nor his ex-wife had an opportunity to refute the assertions in respect of their marriage, the court found that this was an “entirely erroneous statement” in light of the Minister’s letter of December 2019, and that the appellant, “for whatever reason, chose not to present any material whasoever”.

The court opined that like the appellant in ZK, the appellant in this case struggled “to establish that the merits of his application could not have been presented, reasonably and viably, in writing, by way of corroborative documentation and written submissions to the Minister”. That struggle led “to the presentation of the appellant’s case as being one where ‘the right to an oral hearing was a legal rather than a factual issue’. In truth, the legal right can only be established on a consideration of the individual facts of each case.”

Conclusion

Dismissing the appeal, the court concluded that the appellant could not point to “any real factual dispute” and was not entitled to an oral hearing as the absence of same did not prevent the Minister from reaching a fair determination on the issues before her.

M.H. v Minister for Justice and Equality [2023] IECA 267