The High Court has rejected a Nigerian man’s attempt to qualify for the State’s long-term undocumented migrants regularisation scheme, finding that temporary permissions granted during an earlier immigration dispute meant he was not continuously undocumented for the required four-year period.
The applicant, identified as F.A.Y., came to Ireland in 2009 and later married a Latvian national. He received a five-year EU-family residence card in 2011, but the Minister subsequently concluded that the marriage was one of convenience and ultimately treated that residence card as invalid from the outset.
While F.A.Y. was challenging the refusal of a later residence-card application, however, he received temporary permissions to remain in Ireland from July 2017 to March 2018 and again from May to August 2018.
The regularisation scheme, which opened on 31 January 2022, required applicants to show that they had lived in Ireland without valid residence permission continuously for at least four years before that date and remained undocumented when applying.
F.A.Y. argued that because his underlying EU residence card had been retrospectively invalidated, the temporary permissions connected with the review process should also be treated as invalid. The Minister disputed that, saying those permissions were separate discretionary permissions which were never revoked and simply expired.
Ms Justice Cahill agreed with the Minister. Applying earlier High Court decisions, she found the temporary permissions were not based on the validity of the marriage and were not rights granted under EU free-movement law. They therefore remained valid during the periods for which they had been issued.
That meant F.A.Y. was documented during parts of the four-year qualifying period and did not meet the scheme’s eligibility test.
The court also rejected an alternative argument that EU law prevented his removal under a domestic deportation order. The judge found that argument amounted in part to an impermissible collateral challenge to a 2020 deportation order and, in any event, that the temporary permissions were not EU-law residence rights.
The judicial review was dismissed. The judge’s provisional view was that the Minister should receive the costs of the proceedings, subject to further submissions.