The High Court has refused Muhammad Asif’s application for judicial review of a decision upholding the revocation of his residence card. The Minister had found that his marriage to Portuguese citizen Andreia Patricia Pereira Tavares was a marriage of convenience used to obtain a residence entitlement.
Mr Justice David Keane delivered the judgment on 9 August 2019. The challenged review decision, dated 7 June 2017, affirmed the Minister’s 1 June 2016 decision to revoke the card under the European Communities (Free Movement of Persons) Regulations 2015. The card had been granted in September 2015 under earlier regulations.
The court rejected Mr Asif’s argument that the 2015 Regulations were applied retrospectively. It held that the earlier 2006 Regulations already excluded a party to a marriage of convenience from the definition of a spouse and provided for rights acquired through fraud, including such a marriage, to cease. The 2015 Regulations’ procedure for investigating a marriage applied while the matter was pending, the judge said, and did not change the substantive definition.
The judgment recounted concerns raised during the Minister’s review process. These included the lack of evidence of Ms Pereira Tavares’s residence in Ireland before November 2014 or employment before February 2015, and her difficulty communicating at a registration interview. The Minister also considered documents submitted about her alleged employment and noted that some bank transactions appeared to relate to Mr Asif. These were matters considered in the administrative decision; the High Court’s judgment refused the legal challenge and did not quash that decision.
Mr Asif also argued that the Minister’s powers attacked the constitutional institution of marriage and usurped the courts’ role in determining whether a marriage was valid. The judge rejected both arguments, distinguishing the Minister’s assessment of whether a marriage could confer immigration rights from a court’s jurisdiction to rule on the marriage’s validity or subsistence.
The judge accepted one of the Minister’s preliminary objections: there was no legal obligation to determine Mr Asif’s separate application for permission to remain under section 4 of the Immigration Act 2004, so an order compelling the Minister to decide it was not available. The court assumed, without deciding, that Mr Asif had standing to challenge the review decision. It rejected the other preliminary objections, including the argument that a deportation proposal was not reviewable.
The judgment also rejected Mr Asif’s arguments concerning Article 8 of the European Convention on Human Rights and the use of the deportation procedure. It concluded that he had not challenged the rationality or reasonableness of the marriage-of-convenience decision. The application was refused; the judgment did not itself make a deportation order.