Court of Appeal finds no legal errors to undermine decision to refuse residence permission for Brazilian national

The Court of Appeal has upheld a ruling that there were no legal errors to undermine the Minister for Justice’s decision to refuse to grant residence permission for a Brazilian national who was found to have engaged in a sham marriage.

Tiago Da Silva Mascarenhas (39) has been living in Ireland for 16-years having been given short-term permission and subsequent student and working permissions between 2006 and 2011.

In her judgment on behalf of the Court of Appeal, Ms Justice Aileen Donnelly said Mr Mascarenhas married an EU national in 2011, and was given temporary permission pending a decision on a related EU Treaty Rights application. His wife left the State shortly after the marriage, and he did not inform the Minister of this fact, the judge noted.

The man then applied for residency and was granted five-year permission.

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The Minister said that Mr Mascarenhas admitted to the Garda National Immigration Bureau (GNIB) in 2017 that he had been in a marriage of convenience, the judge said.

He initiated judicial review proceedings challenging the Minister’s 2019 refusal to renew his 2016 residence permission. The High Court found no error in this decision.

In appealing, Mr Mascarenhas submitted that the Minister had erred in law in finding the right to privacy provided under article 8 of the European Convention on Human Rights did not apply to the period he was in the State under the marriage of convenience.

He submitted he has been living in Ireland for some years and has been commercially successful, as a company director and shareholder, and has many friends here. He claimed the Minister placed too much weight on the alleged marriage of convenience.

After the appeal was heard, in December 2021, Mr Mascarenhas advised the court he had obtained Portuguese citizenship, said Ms Justice Donnelly. He argued the appeal had continued relevance as the Minister’s decision would have an impact on his rights and deprives him of reckonable residence in the State for the purposes of applying for Irish nationalisation.

The Minister withdrew a proposal to deport him in light of his new citizenship and free movement rights within this State. She submitted that the issues before the court were now moot.

Ms Justice Donnelly, with the agreement of Mr Justice Maurice Collins and Mr Justice Donald Binchy, rejected Mr Mascarenhas’s claim that the Minister had made any mistake that would vitiate her decision.

The Minister accepted the appellant had Article 8 rights but weighed his “limited” private life rights against the competing State interest in the control of immigration, where the majority of his residence was after he had engaged in a marriage of convenience, said the judge. “Clearly these were matters which the Minister was entitled to weigh in the balance,” she added.

The judge said it would appear the Minister is entitled to her costs of defending the appeal.