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Appellant had failed to engage with decision maker in refusal of right to remain

By: Colm Scott Byrne BL

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Court of Appeal dismisses appeal and affirms the decision of the High Court refusing to make an order of certiorari of the decision of the first respondent refusing the first appellant liberty to enter and remain in the State as a permitted family member of the second appellant, on the grounds that: (a) the trial judge was perfectly within his discretion to refuse the relief sought on the basis that the appellant had failed to engage with the decision maker, and the grounds on which he came to this conclusion were fully explained and justified his approach; (b) the approach adopted by the trial judge - that the appellants were precluded from advancing the claim that the Minister failed to give reasons or acted irrationally or in breach of fairness as they had not engaged fully with the statutory opportunity to clarify the matters which had given rise to the concerns articulated by the Minister - was correct; and (c) the trial judge was correct in the views he expressed and in particular in the view he took that the Citizens Directive was correctly transposed into Irish law.

Baker J (nem diss): judicial review - asylum and immigration - family law - raises an issue regarding the transposition into Irish law of Directive 2004/38/EC On the Right of Citizens of the Union and Their Family Members to Move and Reside Freely Within the Territory of the Member States, O.J. L158/77 30.4.2004 (“the Citizens Directive”) by the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548/2015) (“the 2015 Regulations”) - judgment should be read in conjunction with Safdar v. Minister for Justice [2019] IECA 329 which was heard at the same time - the first appellant was a Pakistani national and the second appellant a Union citizen from Hungary - they met in the United Kingdom in June 2014, and in 2015 they moved to the State, the first appellant in August 2015 and the second appellant in September 2015 - they lived together under the same roof since and they entered a non-binding and not legally recognised Islamic ceremony of marriage in July 2016 - they became engaged in January 2017 and an application was made to the Civil Registration Service for permission to marry in the State - this was refused on the stated grounds that the proposed marriage was a marriage of convenience and that therefore an impediment existed sufficient to constitute an impediment to the proposed marriage - this was appealed to the Circuit Court which remained at a preliminary stage at the time of the hearing - the first appellant applied for a residence card as a permitted family member of a Union citizen - this application was refused by the Minister on the ground that the Minister was not satisfied that the documentation established that the first appellant was in a “durable relationship” with the Union citizen and expressly said that the documentary evidence of co-habitation was insufficient - the appellants sought a review of the decision pursuant to r. 25 of the 2015 Regulations - the Minister wrote to the first appellant proposing to uphold the first instance decision and expressed the clear view that the relationship was one of convenience - whether the Citizens Directive has been properly transposed in the State by the 2015 Regulations in a manner that is sufficiently certain and clear to be effective - whether the Minister failed to give reasons for his refusal to grant the first appellant a residence card as a permitted family member of the second appellant - whether the decision of the Minister was rational and probably flowed from the facts of the case - the trial judge dismissed the application for judicial review as the appellants failed to respond to the letter of 9 February 2018 in which the Minister set out a number of specific concerns, and invited a response within 21 days - trial judge was correct in his approach to dismiss the application for the failure to engage in the appeal process - trial judge was correct the views he expressed, albeit obiter, and in particular in the view he took that the Citizens Directive was correctly transposed by the 2015 Regulation - appeal dismissed

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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