The Court of Appeal has proposed referring a question to the Court of Justice of the European Union (CJEU) about whether the Minister for Justice may investigate alleged past abuse of EU residence rules after a person who once relied on those rules becomes an Irish citizen.
The appeal concerns R.S., a non-EU national who married an EU citizen in 2010 and received a five-year residence card. He became a naturalised Irish citizen in 2015. After the couple divorced in 2018, the Minister investigated whether the marriage had been one of convenience and whether R.S. had submitted false or misleading information to obtain residence rights.
In February 2020, the Minister revoked the residence card. Following a review, that decision was upheld in September 2020. In February 2022, the Minister rescinded the review decision, set aside the original decision and substituted a new determination. The new decision did not purport to revoke a current residence right. It found that R.S. had relied on information said to be false or misleading and that the marriage had been one of convenience, with any rights under the Directive treated as withdrawn from the outset.
The High Court dismissed R.S.’s challenge, holding that the Minister could investigate the historical grant of residence permission even though R.S. had since become an Irish citizen. R.S. appealed, arguing that the 2015 Regulations did not authorise a standalone finding when there was no live residence entitlement to refuse or revoke. The Minister argued that the Regulations permitted an investigation into a right or status that had previously been obtained on grounds of suspected fraud or abuse.
The Court of Appeal considered that the EU-law position was not clear. It was inclined to the view that the Directive stopped applying to R.S. when he became an Irish citizen, but said there was room to argue that the Directive might still govern an inquiry into whether a past residence benefit had been obtained through fraud. On the domestic Regulations, the court considered that Regulation 28 did not appear to authorise the determination at issue. It said a power might be implied under Regulation 27, but whether to interpret the Regulations that way depended on the answer to the EU-law question.
The court proposed asking the CJEU whether the Directive applies to a person in those circumstances solely to investigate and, if appropriate, determine whether past fraud, abuse of rights or a marriage of convenience was used to obtain a benefit under the Directive. The parties could raise any objections to the proposed question at a short hearing listed for 26 June 2024. The Court of Appeal did not resolve the appeal or finally decide whether the Minister had power to make the determination.