The High Court has quashed three immigration decisions concerning an Indian national, identified as S, after finding that the Minister for Justice and Equality could not continue a residence application review once S had withdrawn it.
In a judgment delivered on 29 July 2019, Mr Justice Max Barrett said S’s letter of 7 June 2018 had withdrawn his review application. The court found that the Minister had no power under the European Communities (Free Movement of Persons) Regulations 2015 to refuse that withdrawal and then make a finding about an application that was no longer live.
S had arrived in Ireland around February 2015 and claimed asylum in May that year. A transfer order, based on a finding that the UK was responsible for processing his asylum claim, was under appeal. The judgment said he was entitled to remain in Ireland while that appeal was pending.
In December 2016, S applied for residence permission based on his claimed parentage of an EU national child. The application was refused in June 2017 and he sought a review the following month. In June 2018, he asked to withdraw the application, saying that his relationship with the EU national had broken down and the couple had separated.
The Minister declined to accept the withdrawal, issued a notice of an intention to refuse the application over allegedly false or misleading information, and later decided that S should cease to have any right of residence. A proposal to deport him, attached to that decision, was later rescinded after the Minister acknowledged it had been issued in error. The Minister continued to defend the lawfulness of the residence decision.
Justice Barrett ruled that the July 2018 decision remained unlawful despite the rescission of the deportation proposal. It contained statements that S had no immigration status and should cease to be entitled to residence, and remained on his records. The court also rejected the argument that the proceedings had become moot because the related decisions were still in effect and could be challenged.
The judgment did not decide whether S had submitted false information. It said the Minister could, if appropriate, make a complaint under regulation 30, while stressing that S retained the presumption of innocence and the protections of the criminal justice process.
The court granted the orders of certiorari sought in items 1, 2 and 3 of S’s notice of motion dated 2 August 2018, quashing the three decisions identified in the judgment. The judgment does not set out the full wording of those orders.