The Court of Appeal has referred an aspect of a case where the Minister for Justice made a finding against a man who entered into an alleged marriage of convenience before he was granted Irish citizenship to the Courts of Justice of the European Union.
The CJEU will be asked to clarify if the Minister has the power to make a determination regarding a person who obtained certain EU rights by way of fraud.
The case centres around findings made by the Minister against the man, who was born outside of the EU.
After coming to Ireland on a student visa over a decade ago, he married an non-Irish EU national in 2010. After his marriage he was granted a residence card for five years in October 2010 and secured Irish citizenship in 2016.
His residence in the State since that date has been on the basis of his citizenship. In 2018, he and his EU wife divorced.
In 2019, a third-party non-EEA national made an application for residence on the basis that she was the mother of an Irish citizen child of whom the man was the biological father.
This led to an investigation over concerns about the man's 2010 marriage.
The Minister's concerns included the accelerated nature of the marital relationship, the lack of documentary evidence of a subsisting relationship prior to the marriage, and the nature of his relationship with the third party non-EEA national.
Other concerns were that his student visa was due to expire 16 days after his marriage to the EU national, that information from the Department of Employment Affairs and Social Protection indicated limited economic activity on the part of the EU national wife in the State, and the man's failed to inform the Minister of any change of circumstances.
Ultimately, the Minister held that the man had entered a marriage of convenience and had submitted false or misleading information in respect of a residence card, which had since expired because, at the time of that determination, he was a naturalised Irish citizen.
The Minister found that he had relied on documentation and information that was false and misleading in order to obtain his residency and the marriage was entered into for the sole purposes of attempting to obtain a status he was not entitled to.
The Minister added that the marriage was never genuine, and any entitlement or status conferred under the Directive from your marriage to the Union citizen concerned are deemed withdrawn from the outset.
The man brought a High Court judicial review action claiming that various decisions of the Minister regarding his marriage were flawed and should be set aside.
He argued that the decisions were also in breach of his rights as an Irish and EU citizen.
Ruling against the man, the High Court found the Minister did have such a power to conduct an investigation into matters between 2010 and 2015 and dismissed his challenge.
The man appealed that decision to the Court of Appeal.
He argued the High Court erred in finding there was nothing in the 2015 European Communities (Free Movement of Persons) Regulations preventing the Minister from making the decisions challenged when a person becomes a citizen of a EU state.
It was also argued that the High Court erred by failing to find that the Minister's decisions were made outside of their powers and jurisdiction.
The appeal came before Ms Justice Una Ní Rafeartaigh, Ms Justice Ann Power and Mr Justice Charles Meenan.
Giving the CoA's ruling Ms Justice Ní Rafeartaigh said the main issue in the action centred around the Minister's entitlement to make a finding under the 2015 regulations against the man.
The CoA said that the “precise character of the Minister’s decision was not, and did not purport to be, a revocation or refusal of a right of residence."
It was a determination or a finding or a conclusion as to a past state of affairs and the past conduct of the appellant." the judge said.
The new decision hinted at a finding that may be used in the context of a re-assessment of his citizenship status.
The judge said the COA "was inclined towards" finding that the 2015 Regulations do not include a power to make a determination of the kind in issue in the present case.
Nor could it be implied from the regulations, the judge added.
It was essential that this matter of EU law, and the extent of Ministerial powers, be clarified by the CJEU in order to determine the case, the judge said.
The CoA seeks clarification on whether the 2004 EU Citizens’ Rights Directive, which provides for citizens of the EU and their family members to move and reside freely within the territory of Member States applies to a person such as the man.
The case will return before the CoA later this month.
