The High Court has dismissed an anonymised applicant’s judicial review claim seeking to require the Minister for Justice to consider his case under the principles in Chenchooliah. Mr Justice Mark Heslin said the claim was premature because the Minister had made no decision or proposal to remove him from the State.
The applicant, a Pakistani citizen identified as M, arrived in Ireland in 2016 and married a UK citizen in 2017. His application for a residence card was refused in October 2017, and a review was unsuccessful in November 2020. A later residence-card application was refused in September 2021. The judgment records that the couple’s relationship had ended by August 2021.
In 2021 and again in June 2023, the applicant asked the Department for temporary Stamp 1 permission, arguing that his circumstances fell within the European Court of Justice’s ruling in Chenchooliah. That ruling concerns safeguards applicable to certain decisions to expel a third-country national who no longer has a right of residence under the EU Citizens’ Rights Directive.
The applicant also applied to the Long-Term Undocumented Migrants Scheme in March 2022. His application was refused in April 2023 because he did not meet the requirement of four years’ continuous undocumented residence immediately before the scheme’s opening date. The refusal was upheld on review in October 2023.
An email from the Department’s Repatriation Division on 28 September 2023 said the applicant’s case fell to be processed under domestic immigration law and that no intention to deport him would issue while his scheme appeal was pending. The judge found that the email, read in context, did not decide that the applicant should be removed or determine how any removal would be pursued.
The Minister’s evidence was that no removal procedure had begun, no decision to begin one had been made, and no decision had been reached on whether the applicant came within Chenchooliah. The applicant’s counsel argued that the email showed the Minister had chosen deportation under domestic law. The judge rejected that interpretation, noting the evidence was uncontroverted and that the applicant had not sought to cross-examine the Minister’s official who swore the affidavit.
The court held that Chenchooliah did not require the Minister to choose a legal route before deciding whether to seek removal at all. It also found the claim would improperly seek to direct how the Minister should exercise executive power, and that remedies would be available if a deportation process were started. The court dismissed the claim and directed the parties to correspond about the form of order, including costs; any unresolved costs issue could be addressed through written submissions and a later hearing.