About this case:

• Citation:
  [2023] IEHC 500
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Anthony Barr

Delivering the judgment, Mr Justice Anthony Barr held that the applicant’s own false statements, as well as other relevant factors, meant that the Minister was perfectly entitled to revoke any permissions that the applicant had been afforded previously.

Background

The applicant was a 38-year-old Pakistani citizen who arrived in Ireland in 2015. Prior to this he was living in the UK with his brother, a UK citizen. In this application, he sought an order of certiorari quashing a decision of the Minister pursuant to s.3 of the Immigration Act 1999 proposing to deport him, and a further order to revoke his residency card.

He claimed that at one point he was exercising legitimate EU treaty rights in the State, meaning that it was unlawful for the Minister to make a deportation order pursuant to s.3 of the 1999 Act, and instead should have used the removal process in Directive 2004/38/EC, known as the Citizens Directive.

Initially, the applicant applied for a residence card as a “permitted family member” of an EU citizen, being his brother, who was exercising his EU treaty rights in the State, on the basis that he was dependent on his brother and was a member of his brother’s household in the UK.

That application was refused due to insufficient evidence, but, following a second review application, was ultimately successful. In July 2020 the Minister granted the applicant permission to remain in the State on the basis that he was a permitted family member of his brother.

However, in October 2020, gardaí attended a Londis shop where it was alleged that his brother worked. There, the applicant admitted that he had been using his brother’s identity, and had used his brother’s PPSN for the previous five years. The applicant admitted that his brother was then living in the UK and was not exercising his EU treaty rights in the State.

Following this, in December 2020, the Minister revoked the applicant’s permission to remain in the State on the basis that the permission had been obtained through fraud.

The applicant’s submissions

The applicant submitted that where an applicant has been a ‘beneficiary’ under the Citizens Directive, it is unlawful for that applicant to be the subject of a deportation order. Instead, such an applicant should be removed under Article 15 of the Citizens Directive.

A deportation order creates an indefinite ban on entry into a territory, whereas a removal under the Citizens Directive involves removal for a finite period, usually not more than five years. The applicant was therefore seeking the latter, which was less onerous. It was submitted that this had been clearly established by the CJEU in Chenchooliah v. Minister for Justice and Equality (Case C-94/18).

The applicant claimed that despite the application being granted by fraud, there had been a period of time during which his brother had been self-employed in the State. The Minister’s decision to revoke the permission only referred to the fraudulent employment with Londis, and the applicant argued that the finding that the applicant’s brother was never in the State was therefore unreasonable.

He further submitted that the Minister should have afforded him an oral hearing, especially where the finding of fraud had such far-reaching consequences for the applicant’s immigration status.

The respondent’s submissions

It was first noted that the applicant had admitted to the fraud during a Garda interview, and it was submitted that this case could be distinguished from the Chenchooliah decision, which concerned an EU citizen who had left the State, whereas the applicant’s case centred around an abuse of rights and fraud.

It was argued that any ‘legitimate’ grounds in the applicant’s case were encapsulated in the proposal to revoke as a whole, given that the applicant had submitted false and misleading documentation in his applications.

Consideration

The applicant accepted that he was engaged in a fraudulent activity, but asserted that for the period of June 2015 to August 2016 he was the lawful beneficiary of derived rights, due to the fact that his brother was lawfully resident in the State and exercising his EU treaty rights therein.

The applicant asserted that this was sufficient to bring him within the parameters of the Chenchooliah decision.

The court did not find this argument to well-founded for a number of reasons. The court noted first that the applicant’s application contained numerous lies, and his “statements were all false”. In response the Minister concluded:

In these circumstances, the court found that the Minister was entitled to proceed under the provisions of Article 35 of the Directive, rather than under the provisions of Article 15. Accordingly, the Chenchooliah case was not applicable.

The court further found that it was not incumbent on the Minister to hold an oral hearing. This was because of a number of factors, including that the applicant did not contest that the application was fraudulent, did not make submissions when informed of the intention to revoke his permission, did not seek any review of the decision, and never requested to present oral evidence.

Taking all of these matters into account, the court was satisfied that the absence of any oral hearing or interview in advance of the decision to deport the applicant did not constitute a breach of fair procedures.

Conclusion

Ultimately, the court found that the Minister was “perfectly entitled to revoke the permission that had issued in July 2020. She was entitled to hold that the applicant’s entire story was a fabrication and that his brother had never exercised his EU treaty rights in the State.”

As a result, the court refused all of the reliefs sought by the applicant in his notice of motion.

Yaqub v The Minister for Justice (Approved) [2023] IEHC 500