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Finding that a marriage was for the sole purpose of obtaining residence entitlement was lawful

By: James Cross BL

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High Court refuses judicial review of the decision of the Minister for Justice and Equality affirming decision to revoke Pakistani national’s residence card on foot of his marriage to a Portuguese national, on the grounds that there is no legal entitlement to insist upon the determination of an application for permission to remain in the State, outside the context of international protection or European Union law, and the Minister’s finding that his marriage was for the sole purpose of obtaining the relevant residence entitlement was lawful.

Judicial review – asylum and immigration – European law – free movement of persons – challenge to the decision of the Minister for Justice and Equality affirming decision to revoke a Pakistani national’s residence card – residence card granted to him on foot of his marriage to Portuguese national - marriage of convenience - abuse of rights - procedural history and grounds of challenge - marriage and residence card application - decision challenged – proposal to make deportation order - relevant statutory provisions - preliminary objections – notification of a proposal to make a deportation order against him is not a decision amenable to judicial review - like any other administrative decision affecting rights or imposing liabilities and one that is susceptible to judicial review - lacks sufficient interest in the review decision to mount the present challenge to it because, on his own case, his marriage to the EU citizen concerned has broken down - decision is based on the Minister’s conclusion that the family relationship through which Mr Asif had claimed a residence card was a marriage of convenience - not entitled to an Order of mandamus compelling the Minister to decide on the application he made on 12 January 2017 for permission to remain under s. 4 of the Act of 2004 because the Minister is under no legal obligation to consider that application - the situation contemplated by s.4 is that of an immigration officer at a frontier post, port or airport, who stamps a passport or other official identity document and the section does not set a general template for all applications for permission to be in the State - no legal entitlement to insist upon the determination of an application for permission to remain in the State, outside the context of international protection or European Union law - term ‘marriage of convenience’ as it appears in the 2006 Regulations, transposing the Citizens’ Rights Directive, did have a specific meaning and effect in the law of the State at the time when he got married - meaning and effect of the term ‘marriage of convenience’ under the 2006 Regulations – principle against the retroactive application of Community law - failed to establish any breach of the principle against the retroactive application of Community law - unconstitutional attack on the institution of marriage – failure to consider his family rights - inapplicability of the deportation procedure under the Act of 1999 - Minister’s finding that his marriage was for the sole purpose of obtaining the relevant residence entitlement was lawful.

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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