Finding of fraudulent immigration conduct sufficient for residency refusal

The High Court has upheld two decisions of the Minister of Justice and Equality refusing to grant residency permissions under a special scheme due to previous findings that the applicants had perpetrated a fraud on the immigration system.

The non-European Economic Area nationals had originally been granted student visas which had been renewed periodically and then on foot of marriage to a European Union citizen.

In a judgment delivered on Tuesday, Ms Justice Siobhán Phelan ruled that evidence of previous findings of involvement in a marriage of convenience or reliance on misleading documents were sufficient grounds to refuse the permissions under the Special Student Scheme.

One of the applicants, an Indian woman, had been found to have entered a marriage of convenience with a Lithuanian national, said the judge. The other, a man from Pakistan, had been deemed to have submitted documentation that was false and misleading in an effort to conceal his Estonian wife’s departure from this State. There was no finding that his marriage was one of convenience.

The Minister later refused to grant permission under the special scheme on the ground that they did not meet its criterion that one must have been of “good character and conduct” prior to and since arriving in the State, the judge noted.

The special scheme was introduced in 2018 to allow certain non-EEA nationals who held student permission in this State between 2005 and 2010.

It was brought in as a temporary measure, accepting applications over a three-month period, to address concerns raised in a 2018 Supreme Court decision relating to undocumented persons.

Ms Justice Phelan noted that both applicants in their separate proceedings had challenged the Minister’s refusals alleging she had operated a fixed policy that a previous finding leading to the revocation of residence permission automatically precluded them from consideration under the scheme.

Further, each alleged the Minister erred in law in failing to properly assess their character and conduct by relying exclusively on the finding that led to the revocation of their EU residence permissions, she said.

The Minister had failed to weigh other evidence of good character, such as employment history in this State and supportive material from colleagues and friends, it was claimed.

Ms Justice Phelan said the eligibility test for the scheme is in some ways a “higher or more restricted standard” than the “good character” requirements under the Irish Nationality and Citizenship Act, 1956.

A criminal conviction is not an automatic bar to eligibility for a certificate of naturalisation under the 1956 Act, but it is a separate and unambiguous ground for disqualification under the targeted scheme, she said.

The judge did not agree with submissions that the Minister had engaged in a “tick box exercise” and had failed to consider other information.

While the Minister must consider all aggravating and mitigating circumstances, where findings of fraudulent conduct for the purposes of the EU Regulations have already been made applicants have a “steep hill to climb” to establish they have been of good character and conduct, she said.

The convenient marriage and misleading documents findings were, in the judge’s view, enough to justify the decision regarding character and conduct even where there was other evidence of good character before the decision-maker.

Ms Justice Phelan gave a provisional view that the Minister was entitled to her costs.