MKFS v Minister for Justice

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Respondent/Defendant:Minister for Justice
Court/s:Supreme Court
Citation/s:[2020] IESC 48
Nature of Proceedings:Judicial review/appeal
Judgment Date/s:24 Jul 2020
Judge:McKechnie W
Category:Immigration
Keywords:Family Member, Free Movement, Marriage of Convenience
Country of Origin:Pakistan, Latvia
URL:https://www.courts.ie/acc/alfresco/62731429-025f-485f-95c7-8ceb67c95d52/2020_IESC_48(Unapproved).pdf/pdf#view=fitH

Facts: The applicant was a Pakistani national who entered the State on 12th June 2009 on a visit visa. On 12th February 2000 he married a Latvian national who was resident in the State and exercising her EU Treaty Rights. On 27th April 2010 the applicant applied for a residence card under the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 (S.I. No. 656 of 2006). He was given permission to remain for five years, commencing on 22nd October 2010, on foot of the marriage. He averred that the couple separated in 2011 but reconciled in mid-2015. On 21st October 2015 he applied to renew his residence card. On 4th May 2016 he was notified that the Minister was of the view that the marriage was one of convenience and given an opportunity to make submissions on that issue, which he did. On 9th July 2016, the Minister formally decided that the marriage was one of convenience under the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015). Regulation 28 of the 2015 Regulations allows the Minister to disregard any marriage as being one of convenience and provides for notice to a party of an intention to so decide and for a formal decision by the Minister deeming the marriage to be one of convenience. Notice of that decision was duly given. The applicant subsequently sought a review of that decision, but on 20th March 2017, the Minister’s decision that the marriage was one of convenience was upheld on review and the applicant was refused a permission under the 2015 Regulations. No proceedings were taken challenging that decision. The Minister subsequently made a deportation order in respect of the applicant. The applicant instituted proceedings challenging the deportation order, arguing that in the deportation decision-making process the Minister was not entitled to rely on the previous finding regarding the marriage of convenience.
The High Court ([2018] IEHC 103) rejected this contention and held that the Minister was entitled to rely on a finding that a marriage was one of convenience, in circumstances where the applicant had not challenged that decision at the time of the refusal of his application for a residence card. The High Court also held that where a marriage is one of convenience, no rights arising from that relationship can be asserted. The applicant was subsequently granted leave to appeal directly to the Supreme Court.

Decision: The Supreme Court allowed the appeal from the judgment of the High Court. The Supreme Court accepted that the Minister’s decision (made in the context of an application for a residence card under the Free Movement of Persons Regulations 2015) that a marriage is one of convenience, may be relied upon subsequently by the Minister as part of deportation decision-making process. However, McKechnie J held that such a decision under the 2015 Regulations does not have the effect of rendering that marriage a nullity at law; rather, such determination is limited to the immigration/deportation context, and the sole consequence thereof is that it entitles the Minister to “disregard” the marriage in that specific context. Although McKechnie J noted that the law of nullity had been judicially developed in the past, immigration judicial review proceedings were not an appropriate vehicle for the court to pronounce on the wider question of whether a marriage of convenience is a legal nullity for all purposes, and that such question would more appropriately be determined in the context of an application for an annulment before a court with jurisdiction in relation to matters of family status, including the power to make an underlying factual determination concerning the marriage. Finally, McKechnie J held that although the Minister is entitled to import the earlier decision into the deportation process, he must nonetheless have regard, in operating that process, to the Article 8 rights of the appellants as founded on the underlying relationship between the parties.

Principles:The Minister for Justice is entitled in the course of the deportation decision-making process to rely on an earlier, unchallenged finding that a marriage is one of convenience. However, he must nonetheless have regard, in operating that process, to the Article 8 rights of the applicants as founded on the underlying relationship between the parties.
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