Facts: Ms Rana and Mr Ali were in Ireland on student permissions. Upon their expiration, they each entered into what were later held to be marriages of convenience with EU citizens. They both held residence permissions in the State as spouses of EU citizens. Their permissions were both respectively revoked. Ms. Rana’s was revoked for entering into a marriage of convenience, and Mr. Ali’s was revoked for submitting misleading documentation.
They subsequently applied for permission to remain under the Special Scheme for Non-EEA Nationals who had held a student permission between 2005 and 2010. Their applications were refused on the basis that they had held a permission after the expiry of their student permissions, the previous revocation of residence permissions and their entries into marriages of convenience. They were considered to not meet the requirement of being of good character and conduct in the State. In both cases, a review was requested and the original decisions were upheld. In the meantime, the applicants had been granted permission to remain under the 2022 Long-Term Undocumented Migrants Scheme.
The applicants brought judicial review proceedings to the High Court, which upheld the Minister’s decision. An appeal was brought to the Court of Appeal, where in a majority decision Faherty J. and Haughton J. found that the decision-maker should have provided unambiguous evidence that the review decision-maker had engaged ‘in a real way’ with the arguments and materials advanced in the review applications, together with evidence of conducting the requisite weighing exercise. The Minister’s decisions were quashed and remitted for consideration. The Minister of Justice appealed to the Supreme Court.
Reasoning: In the Supreme Court, O’Malley J. first distinguished the Special Scheme for Students from the 2022 Long-Term Undocumented Migrants Scheme, with the concept of ‘good character and conduct’ intended to be applied more strictly in the former. It was therefore held that there was no inconsistency in the decision to grant the applicants permission to remain under the 2022 scheme and not the Special Scheme.
O’Malley. J, then went on to consider the good character and conduct requirement under the Special Scheme and recalled that criminal convictions were an absolute bar. Bad conduct, short of that would not necessarily be a bar. However, it must be seen as having been at a very high level of gravity.
O’Malley J. held that the Minister in each case found the conduct to be sufficiently serious to justify a decision to revoke their previous permissions and these decisions were not challenged at the time. It was held that it was not necessary for the decision makers under the Special Scheme to reassess the question of gravity and to see where, on the spectrum of marriages of convenience, these cases fell. Thus, the decision-making process was appropriate.
As to whether the decisions comply with the duty to give reasons and engage with the evidence, with reference to G.K. v Minister for Justice [2002] 2 I.R. 418, O’Malley held that it was sufficient to accept the statement that a decision-maker had considered all the material before them, unless there is some evidence-based reasons for thinking otherwise.
Decision: The appeal was allowed.
