Sinnott Solicitors receive many queries from Applicant’s whose residence card has either been revoked or the Applicant may be faced with a threat of revocation of their residence card because the Department of Justice are of the opinion that the Applicant has entered into a marriage of convenience in order to gain immigration advantage.  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 (“the Directive”) which is given effect in Ireland by The European Communities (Free Movement of Persons) Regulation 2015 (“the Regulations”) provides a right of family members to reside in a member state with their spouse.

 

Growing trend to refuse applications based on a marriage of convenience finding 

There appears to be a growing trend within the Department of Justice to refuse applications on that basis even in circumstances where the marriage appears to be genuine and subsisting.  It is extremely difficult for applicants in the present climate to prove that the marriage is genuine and subsisting and that their spouses are exercising their EU Treaty Rights within the meaning of the Directive.  Sinnott Solicitors are presently taking challenges before the High Court by way of Judicial Review for clients where the marriage is clearly genuine within the meaning of the Directive.

Quite often, the decision of the Department states that the Applicant sought to rely upon documentation which they knew to be false or misleading or that the Applicant has engaged in an abuse of rights in accordance with Regulations 27 of the Regulations in some form or other.

 

Consequences of Marriage of convenience finding 

If the Minister is satisfied that the marriage to an EU Citizen is one of convenience in accordance with regulation 28 of the European Communities (Free Movement of Persons) Regulations 2015 (the Regulations) and that the marriage was contracted in an attempt to obtain an immigration permission which the Applicant would not otherwise be entitled, then the Minister will refuse the application for a permanent residence card and revoke the residence card.  Such a decision can have disastrous consequences for an Applicant.  It often means that a person’s citizenship application also becomes unravelled and revoked because of the decision of the Minister in relation to a marriage of convenience finding.  

In the recent case of UM (a minor) suing by his father and next friend MM) and the Minister for Foreign Affairs and Trade and Passport Appeals Officer 2020 IECA154, the Minister for Justice refused a child an Irish Passport after his father’s refugee status was revoked in 2014 on the basis that his father had given false and misleading information when he sought asylum and had not disclosing that he had previously sought asylum in the UK.  It was decided that residence permission granted to the father upon which the boy relied to ground his claim for Citizenship was obtained through false and misleading information.  The revocation of the father’s refugee status effectively unravelled the Irish Citizenship that had been conferred upon his children because of the finding in respect of the documentation that the father had submitted.

The above case is a as an example of how a revocation of permission can have a disastrous domino effect upon an entire family.

If the Minister is satisfied that the marriage to the EU Citizen is one of convenience, the marriage will be deemed to be void ab initio which effectively means that the marriage was invalid from the outset and therefore never existed in law for the purpose of the EU Treaty Rights application.  That leaves the Applicant in a situation whereby the residence card is revoked and the Applicant no longer has any valid legal permission to remain in the State.

At that stage, the EU Treaty Rights application is closed and a notification under Section 3(4) of the Immigration Act 1999 is furnished to the Applicant.  That is the notification whereby the Minister proposes to make a Deportation Order in respect of the Applicant.  The Applicant will have three options as follows:-

  1. Leave the State before the Minister makes a final decision
  2. Consent to a Deportation Order
  3. Submit representations to the Minister under Section 3 of the Immigration Act 1999 as to why a Deportation Order should not be made

 

Proving that a genuine relationship exists 

It is absolutely essential that Applicants adequately address any concerns that the Department of Justice may raise in relation to the genuineness of the marriage.  If the Minister decides to refuse an application for a permanent residence card, the Applicant may request a review of the decision by the EU Treaty Rights Division of the Department of Justice. The application for a permanent residence card and if necessary the review application must deal very thoroughly with the marriage issue.  In light of the trend that we are currently seeing and the number of refusals based upon marriage of convenience, it is our advice that an application for a permanent residence card must be approached from the point of view of proving from the very outset of the residence card application by way of documentation, personal statements, detailed relationship history proofs and any other documentation that will show the Minister that the marriage is genuine.  

We submit that it should not be the case that an Applicant should be put through such rigorous obstacles in order to show that they are in a genuine relationship.  However, once an Applicant can put forward each and every piece of information available to show that the marriage is genuine from the outset, then that Applicant through their Immigration Solicitors will be in a better position to challenge any refusal where the Minister contends that the Applicant has engaged in an abuse of rights in accordance with the regulations.

 

Legal challenges to a Marriage of convenience Decision 

Review

When an application for a permanent residence card is refused because the Minister is not satisfied that the marriage is genuine, it is open to the Applicant to request a review under regulation 25 of the regulations.  The review application must be made on the Form EU4 within 15 working days and should be sent to the Review Unit of the EU Treaty Rights division.  The review application must be very detailed and must set out once again, all of the reasons why the marriage is genuine and not one of convenience. It must also rebut all allegations made by the decision maker in respect of the genuineness of the marriage. 

 

Representations to the Minister under Section 3 of the Immigration Act 1999 (as amended)

If the review application is unsuccessful, then the Applicant is left with no option but to make representations to the Minister in accordance with the Immigration Act 1999 as previously discussed above.

 

Judicial Review of a marriage of convenience finding 

If an Applicant can show that the relationship is genuine and if the decision maker has not proven otherwise or has drawn inferences which they should not have drawn in light of the genuineness of the relationship, then an Applicant can challenge a marriage of convenience refusal by way of a Judicial Review application before the High Court.  Sinnott Solicitors prepare Judicial Review applications of  refusals based upon a marriage of convenience finding.

In the case of Muhammad Asif .v. The Minister for Justice High Court August 2019, the Applicant sought orders quashing a review decision of the Minister and the Minister’s proposal to make a deportation order against him in circumstances where the Minister had decided that the marriage was one of convenience contracted for the purpose of obtaining a residence card.  In that case, the High Court held that the concept/term of marriage of convenience did have meaning and effect in the law of the State.  The High Court rejected the Applicant’s judicial review application and held that any rights or entitlements under the regulations would cease if it was found that those rights had been acquired by fraudulent means.

The High Court and the Supreme Court of Ireland have considered some marriage of convenience challenges.  Sinnott Solicitors have recently taken challenges in respect of marriage of convenience refusals to the High Court by way of Judicial Review application.  The circumstances of every case will be different but it remains the fact that a number of marriages are genuine and not marriages of convenience which are contracted to give immigration advantages to the Applicant.

 

Typical reasons for marriage of convenience refusals

We have noticed from the numerous decisions which we receive that the Department of Justice examine various factors and reasons when coming to a decision to revoke permission or a decision to refuse permission based upon a marriage of convenience.  A non-exhaustive list of examples of those reasons are as follows:

  • Flight details of the EU Citizen
  • Dates of departure and return to the State of both parties 
  • Employment arrangements of the EU Citizen
  • Examination of documentation provided with the application
  • Tax records in the context of employment
  • Income details of the EU Citizen
  • Information from the EU Citizen’s member state of origin
  • Information in respect of the EU Citizen’s employer
  • Information regarding the Applicant’s relationship with the EU Citizen and assumptions made in respect of the relationship on the basis of the interpretation of the information provided or not provided!
  • Documentation submitted that is found to be forged, invented for the purpose of the application and not genuine leading to a determination of fraud against the applicant 

 

The role of the Gardai and the Registrar of Marriages 

In 2015, An Garda Siochana set up “operation vantage” in order to tackle potentially bogus marriages.  We have come across a number of Applicants who have been investigated by An Garda Siochana where their residential properties have been searched and other means used in order to investigate whether the marriage is genuine.

The Registrar of Marriages may also receive objections to a proposed marriage where a marriage of convenience is suspected.  That means that notifications to marry can be cancelled, abandoned or withdrawn following engagement or interviews conducted with a Registrar.  Under the Civil Registration (amendment) Act 2014, the Registrar has the right to investigate and decide whether an intended marriage would be a marriage of convenience for immigration purposes.  That is a very wide power and some of those decision have been the subject of Judicial Review challenges before the High Court.  Statistics from the Department of Employment Affairs and Social Protection showed that 41 cases of suspected Marriage of Convenience were referred for investigation in 2019.  Twenty marriage ceremonies were ultimately prevented from proceeding.  The power afforded to the Marriage Registrar is extremely wide and if circumstances arise where the Registrar has erred in law in applying that power, that may give rise to a challenge by way of judicial review.

 

Delay in processing EU Treaty Rights Review Applications

Clearly a very lengthy delay in processing applications for Residence Card and in Review applications may lead to a necessity to bring a Judicial Review in order to compel the Minister to make a decision in the matter. In the of the event that the delay in processing an application/review is unreasonable and disproportionate to any object to be achieved in terms of public policy or security, it may lead to the requirement for a judicial review application before the High Court by immigration solicitors  in order to compel the EU Treaty Rights Division to process the application. 

 

What to do when your application for a permanent residence card is refused based upon a marriage of convenience finding

If you are a non-EU Citizen married to or in a civil partnership with an EU Citizen and if you are concerned about your immigration status because the Minister is of the opinion that the marriage is one of convenience and contracted in order to gain immigration advantage, then Sinnott Solicitors would be happy to assist you in relation to your immigration case.  Please do not hesitate to contact us at 01-4062862 or info@sinnott.ie 

 

You will find a lot more information about EU Treaty Rights residence permission and revocation on our website www.sinnott.ie